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J^(Bt\Mi^ College Ubt«qf 




BRIGHT LEGACY 

Oae half tkc lacoat fton tkb LcfMj, wkkk wm r«- 
ceir«4 ta itSo nader th« will of 

JONATHAN BROWN BRIGHT 
of Wahhaa, MMnchwotts. Ii to k« expended for book* 
for the Collie Library. Tm other half of the lacome 
la devoted to t^olanhlps la Harvard Uaiverthf for the 
beaedt of deeceadaatt of 

HINRT BRIGHT, JR., 
who died at Watertowa, MeuachaMCte, ia 16S6. la the 
abeeaee of ni^ deeceadaatt, other pereoas are eUglble 
to the tcholanhlpe. The will reqalree that thli aaaoaaeo- 
aeat ahall he auide la ererjr book added to the Library 
aader lie provUioae. 




THE LIFE OF JOHN MARSHALL 

VOLUME IV 



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THF , 

JOHN MA 



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HOUGHTON MIITLIN C).i,'. 
11;;,' 



THE LIFE 

OF 

JOHN MARSHALL 

BT 

ALBERT J. BEVERIDGE 

VOUTMK IV 
THS BUILDIHQ OF THB NATIOK 

1816-1886 



BOSTON AND NXW TOBK 
HOUGHTON MIFFLIN COMPANY 

1919 



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copntienr, 1919. ■'^ albert j. bev«iud«» 



ALL RIGHTS RBSSRVXD 



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CONTENTS 



L THE PERIOD OF AMEBICANIZAITON . 



• • 



War and MarsbaU's career — Federalists become British partisans 

— Their hatred of FVanoe — Republicans are exactly the reverse 

— The deep and opposite prejudices of Marshall and Jefferson — 
Cause of their conflicting views — The people become Europeanized 

— They lose sight of American considerations — Critical need of 
a National American sentiment — Origin of the War of 1812 — 
America suffers from both European belligerents — British depre- 
dations — Jefferson retaliates by ineffective peaceful methods — 
Hie Embargo laws passed — The Federalists enraged — Pickering 
makes sensational speech in the Senate — Marshall endorses it — 
Congress passes the "Force Act" — Jefferson practices an auto- 
cratic Nationalism — New England Federalists propose armed re-, 
listance and openly advocate secession — Marshall rebukes those 
who resist National authority — The case of Gideon Olmstead — 
Pennsylvania f ordbly resists order of the United States Court — 
Marshall's opinion in U.S. 9$. Judge Peters — Its historical signifi- 
cance — The British Minister repeats the tactics of Gen6t — Feder- 
alists uphold him — Republicans make great gains in New England— 
Marshall's despondent letter — Henry Clay's heroic speeches — ^War 
is declared — Federalists violently oppose it: '' The diild of Prosti- 
totion" — Joseph Story indignant and alarmed — Marshall pro- 
posed as Presidential candidate of the peace party — Writes long 
letter advocating coalition of "all who wish peace" — Denounces 
Napoleon and the Decree of St. Cloudy — He heads Virginia Commis- 
sion to sdect trade route to the West — Makes extended and difficult 
journey throui^the mountains — Writes statesmanlike report — 
Peace party nominates Clinton — Marshall criticises report of Sec- 
retary of State <m the causes of the war — New En^^d Federalists 
determine upon secession — The Administration pamphlet on ex- 
patriation — John Lowell brilliantly attacks it — Marshall warmly 
approves Lowell's essay — His judicial opinions on expatriation — 
Tlie coming of peace — Results of the war — The new America is 
born. 

n. MARSHALL AND STORY 59 

Marshall's greatest Constitutional decisions j^ven during the decade 
after peace is dedared — Majority of Supreme Court becomes 
RepnbBcan — Marshall's influence over the Associate Justices — 
His life in Richmond — ffis ne^igent attire — Personal anecdotes — 
Interest in fanning — Simplicity of habits — Holds Circuit Court 



I ^M CONTENTS 

^j^fc^^lf'J-Marahftll's devotion to hii wife — BbreGgiowbeUrf — 
'— ^fc , — Life at Oak Hill — Generonty — llember of Qomt 

m ^ Si%i. "lawyer dinnen" — Delist* in the reading of poetiy 
HL>.' '^9B^U'~ P"'"l'*"'^y 1^ friendlinas — Joaeph Story Gnt 
HQs* i^^l^Buef Justice — Ii captivated by hia peraonaUty — Mar- 
■hall'B dignity in ptcnding over Supreme Court — QuidnMM at re- 
partee — Life in Waahington — Marshall and Aaaocitite Jiutice* live 
together in same boarduig-bouse — ^ His lUilike of publidty — Honor- 
uy degreea conferred — Esteem irf hii contemponriea — Hb per- 
•onality — Calmness of manner — Streogtlt of intellect — Hit ir- 
renstible charm — Likeness to Abraham linooln — Vhe itiaiig and 
bnlliant bar proctiisng before the Supreme Court — Lcffd oratory e( 
the period — Length of arguments — Joaeph Story — Hischanotac 
and attainments — Birth and family — A Bepublicaa — Devotion 
to Marshall — IlMir friendship mutually helpful — Jefieraon fean 
Manhall'i influence on Story — Eldward LiTiu^ton sues Jefferson 
for one hundred thousand dollan — Ciicunutaooea ksding to 
Batture litigation — Jefferson's desire to name Diitiict Judge 
in Virginia — Jefferson in letter attat^ MwrrbwH — He dictates 
appointment of John l^ler to succeed Cyrus Griffin — Death of Jn>- 
tioeCudiingot the Siqueme Court — J^erson trisato nameCuib- 
.m^ssucceaaor — He objects to Story — Madison wishes to comply 
with Jeffenon's request — His consequent difficult in fiUing pUoe 

— Appointment of Story — Jefferson prepares l«ief on Battura case 

— Public interest in case — Case is beard — Marshall's opinion 
nflects on Jefferson — ChanceBtv Kent's opinion — Jefferson and 
livingston publidi statements — M»r«ti«ll ascribes Jeflenm's Biii< 
mosity in subsequent yean to the Batbue litigaliMi. 

m. INTERNATIONAL LAW UT 

Msnhall uniformly upholds acts <rf Congreas even when be thinka 
them unwise and of doubtful constitutionality — 'nie Embargo, 
Non-Tmportatbn, and Non-Intercourse laws — Marshall's sli^t 
knowledge of admiralty law — EBs dependenee on Story — Mar- 
ihaD is supreme only in Constitutional law — High rank ot hia opin- 
ions on international law — Examples: Hie Schooner Exchange; 
U.S. M. Palmer: lite Divina Pastors; The Venus; The Nernd — 
Scenes in the court-room — Appearance ot the Justioee — William 
Pinkney tbe leader of the American bar — His learning and rio- 
qnence — H'ls extravagant dress and arrogant manner — Story's ad- 
miration of him — MarabaU's tribute — Chaiaoter of the bar — Its 
members stateamen aa well as lawyers — Hie attendance of women 
'^ at argument* — Mrs. Smith's letter — American Insurance Co. 
el at, VI. David Canter — Story delivers the opimon in Martin w. -y 
Hunter's Lessee — Reason for Marshall's dedioing to sit b that 
case — Tits Vir^nia RepuMicaii organisation — llw great poUti- 
cal txiumvirale. Soane, lUtchie, and Taylor — The Fairfax Utigation 
— The Marshall pmdiaae of a part of the Fairfax estate — Separate 
piirrbiarnnf fnmniM ^ftfr^'Bll — 'nieMarshaBandVir^ia"eom- 
pnauae" — nigiiiisC«yTtflf AppealidacideaintavnrctHiuitei— ^' 



CONTENTS vii 

Nstinid Supnoie Coart levenes Stote oouil -* llie b^ 
fiaaoe of Uie N«tkiiiml tribunal — Marshall refoses to sit in the case 
of the Granville hein — EBstory of the Granville litigation — The \ 
■eoond appeal from the Virgima Court in the Fairfax-Martin-Htinter t 
case — Story's great ofnnion in Fturfax*s Devisee vs. Hunter's Lessee 
— Wb first ConstitoUonal proaonncement — Its resemblance to 
Marriiall's opinions — The Qiief Justice di8ap]>rove8 one ground of 
Story^s opinion — His letter to his brother — Anger of the Virginia 
jodges at reversal of their judgment — The Virginia Republican 
ofganiwitiffln prepares to attads Marshall. 



IV. FINANCIAL AND MORAL CHAOS 168 

February and March* 1810, mark an epoch in American history -* 
Marahall, at that time, delivers three of his greatest opinions — He 
rarveys the state of the country — Beholds terrible conditions — 
The mofnl, economic and social breakdown — Bad banking the im- 
mediate cause of the catastrophe — Sound and brilliant career of 
the first Bank of the United States — Causes of popular antagonism 
to it — Jealouqr of the State banks — Jefferson's hostility to a cen- 
tral bank — John Adams's description of State banking methods — 
Opposition to rechartering the National institution — Congress re- 
fuses to recharter it — Abnormal increase of State banks — Their 
great and unjustifiable profits — Congress forced to diarter second 
Bank of the United States — Immoral and uneconomic methods 
of State banks — Growth of "private banks" — Few restrictions 
placed on State and private banks and none regarded by them — 
Popular erase for more ''money" — Character and habits of West- 
em settlers — Local banks prey upon them — Marshall's personal ez- 
pcrienee — State banks control local press, bar, and courts — Ruth- 
less foreckksures of mortgages and incredible sacrifices of property 
— Counterfnting and crime — People unjustly blame Bank of the 
United States for their financial misfortunes — It is, at first, bad, and 
corruptly managed — Is subsequently well administered — Popular 
demand for bankruptcy laws — State "insolvency" statutes badly 
drawn and ruinously executed — Speculators use them to escape the 
payment of their liabilities while retaining their assets — Foreclo- 
sures and sheriff's sales increase — Demand for "stay laws" in 
Kentucky — Marshall's intimate personal knowledge of conditions 
in that State — States begin to tax National Bank out of exist- 
ence — Blarshall delivers one of his great trilogy of opinions of 1819 
on contract, fraud, and N i ^nlHng — Effect of the decision of the 
Supreme Court in Sturges v$. Crowninshield. 

V. THE DAETMOUTH COLLEGE CASE . . . . ««0 

The Dartmouth CoQeg^ case affected by the slate of the country — 
Mardiall pr epa r es his opinion while on his vacation — His views 
well known — His opinkm in New Jers^ t$, Wilson — Eleasar 
WheelodL's fntAki Indian school— The voyage and mission of 



viii CONTENTS 

Whitaker and Occom — Funds to aid the school raised in England 
and Soothmd ^- llie Eiari of Dartmouth — Governor Wentworth 
grants a royal charter — Provisions of this document — Colonel 
John Wheelock becomes President of the College — The begin- 
nings of strife — Obscure and confused origins of the Dartmouth 
controversy, including the slander of a woman's reputation, secta- 
ritm warfare, personal animosities, and partisan conflict — The 
College Trustees and President Wheelock become enemies — The 
hostile factions attack one another by means of pamphlets — The 
Trustees remove Wheelock from the Presidency — The Republican 
Legislature passes laws violative of the College Charter and estab- 
lishing Dartmouth University — A^olent political controversy — The 
College Trustees and officers refuse to yield — The famous suit of 
Trustees of Dartmouth College vs. Woodward is brought — The con- 
tract clause of the Constitution is but lightly considered by Webster, 
Mason, and Smith, attorneys for the College — Supreme Court of 
New Hampshire upholds the acts of the Legislature — Chief Jus- 
tice Richardson delivers able opinion — The case appealed to the 
Supreme Court of the United States — Webster makes his first great 
argument before that tribunal — He rests his case largely on " natu- 
ral right" and "fundamental principles,** and relies but little on the 
contract clause — He has small hopes of success — The court cannot 
agree — Activity of College Trustees and officers during the summer 
and autumn of 1818 — Chancellor James Kent advises Justices 
Johnson and Livingston of the Supreme Court — William Pinkney 
is retained by the opponents of the College — He plans to ask for a 
reargument and makes careful preparation — Webster is alarmed 

— The Supreme Court opens in February, 1819 — Marshall ignores 
Pinkney and reads his opinion to ^lich five Associate Justices assent 

— The joy of Webster and disgust of Pinkney — Hopkinson*s com- 
ment — The effect of Marshall's opinion — Tlie foundations of good 
faith — Comments upon Marshall's opinion — The persistent vital- 
ity of his doctrine as announced in the Dartmouth College case — 
Departures from it — Recent discussions of Marshall's theory. 

VI. VITALLZING THE CONSTITUTION «82^ 

The third of Marshall's opinions delivered in 1819 — The facts in 
the case of M'Culloch vs. Maryland — Pinkney makes the last but 
one of his great arguments — The final effort of Luther Martin — 
Marshall delivers his historic opinion — He announces a radical 
Nationalism — "The power to tax involves the power to destroy** 

— Marshall's opinion is violently attacked — Niles assails it in his 
Register — Dedares it "more dangerous than foreign invasion" — 
Marshall's opinion more widely published than any previous judi- 
cial pronouncement — The Virginia Republican organization per- 
ceives its opportunity and strikes — Marshall tells Story of the 
coming assault ^- Roane attacks in the Richmond Enquirer — 
"The people must rouse from the lap of Delilah to meet the 
Philistines" —The letters of "Amphyction" and "Hampden" — 
The United States is "as much a league as was the fonner confedera- 



CONTENTS 'a 

tion" — Manhmll is acutdy alarmed by Roane's attacks — He 
writes a dull and petulant newspaper defense of his brilliant opinion 

— Regrets his oontzoversiai effort and refuses to permit its republi* 
cation — The Virginia Legislatuze passes resolutions draouncing 
his opinion and proposing a new tribunal to decide controversies be- 
tween States and the Nation — The slave power joins the attack 
upon Marshall's doctrines — Ohio aligns herself with Virginia — 
(Hiio*s dramatic resistance to the Bank of the United States — 
Passes extravagantly drastic Uws — Adopts resolutbns denounc- 
ing Marshall 8 opinions and defying the National Government — 
Pennsylvania, Tennessee, Indiana, Illinois also demand a new 
court — John Taylor **of Caroline" writes his notable book, Con- 
Mtmetiau dnuimtd — Jeffeison warmly approves it — Dedaies the 
National Judiciary to be a "subtle corps of sappers and miners 
constantly working underground to undermine the foundations of 
our confederated fabric." 

Vn. THREATS OF WAB " . . S40 

Relation of slavery and MsrshaU's opinions — The South threatens 
war: "I behold a brother's sword crimsoned with a brother's 
blood" — Northern men quail — The source and purposeof Mar- 
shall s opinion in G>hens s#. Virginia — The facts in that case — 
A trivial police court controversy — The case probably "ar- 
ranged" — William Ffnkney and David B. Ogden appear for 
the Cohens — Senator James Barbour, for Virgmia, threatens se- 
cession: "With them [State Governments], it is to determine how 
long their [Natioosl] government shall endure" — Marshall's opinion 
is an address to the American people — The grandeur of certain 
passages: "A Constitution is framed for ages to come and is 
designed to i^yproach immortality" — The Constitution is vital- 
ised by a "conservative power" within it — Independence of the 
Judiciary necessary to preservation of the Republic — Marshall 
directly reives to the assailants of Nationalism: "The States are 
members g^ one great empire" — Marshall originates the phrase- 
ology, " a govemn fftn^ # ^Yi f°^ frr ^^ peop le" — Publication 
of the opinion in Cohens m. Vurgmui arouses mtense excitement 

— Roane savagely attacks Marshall under the nam de guerre of 
"Algernon Sidney" — Marshall is deeply angered — He writes 
Story denouncing Roane's artides — Jefferson api^uds and en- 
courages attacks on Marshall — Marshall attributes to Jefferson 
the assaults upon him and the Supreme Court — The incident of 
John £. Hall and his Journal cfAmeriean Jvritpnidence — John 
Taylor again assails Marshall's opinions in his second book, 
Tpraimy Unmasked — He connects monopoly, the protective 
tariff^ internal improvements, "eidusive fmvileges," and eman- 
cipation with Marshall's Nationalist philosopfay — Jefferson 
praises Taylor's essay and declares for armed resistance to Na- 
tional "usurpation": "The States must meet the invader foot to 
foot" — Senator Richard M. Johnson of Kentucky, in Congress, 
attacks Marshall and the Supreme Court — Offers an amend- 



■s 
N 



X CONTENTS 

daent to the ConMitntioii ^ying tlie Senate i^pidbte jurbdiction 
from tlMit tribunal — Roane aakt tbe '^Hrgiina Legklature to de« 
mand an amendment to the Nationai Constitntion Kmi fring the 
power of tlie Sopreme Coort — Smator Joimson makefl boM and 
powerful speedi in the Senate — Deekres the Supreme Court to 
be a demal of the whole dnnoeratie theory — Webster sneeni at 
Johngon's addtees — Kentudcy and the Supreme Court — The 
**Oocupying Claimant'* lawi — Decisions in Green m. Biddk-^ 
The Kentucky Legiskture passes oondenmatory and defiant reso^ 
lutions — Justice William Johnson infuriates the South by an 
opinion from the Circuit Ben<^ — The connection of the fore-* 
gomg events With the Ohio 6ank case — The alignment of eco- 
nomic, political, and social forces — BCarshaU delivers his opinion 
^ in OsborUM. The Baidc of the United States — The hktorical 
sigBJftmnefe <rf his dedaratkin in that case. 

Vm. COMMERCE MADE FREE 897 - 

Fulton's experiments on the Seine in Paris — Frendi scientists re- 
ject his mventioD -^ The LtyingstOn-Fulton partnership — liv- 
mgston's former experiments in New York — Secures monopoly 
grants from the Legisktture — Hiese expire — The Clenmmt 
makes the fot successful sieamboat voyage — Water transporta- 
tion revolutionized — New York grants m<mopoly of steamboat 
navigation to Livingston and Fulton — They (md Nicholas J^ 
Roosevelt to inspect the Ohio and Miaiissippi Rivers — His ro^ 
mantic voyage to New Orieans — Louisiana grants exclusive 
eieamboat privileges to Livingston and Fulton — New Jersey 
retaliates on New York — Connecticut forbids Livingston and 
Fuhen boats to enter her waters — New York citizens defy 
the steamboat monopoly — Livingston and Fulton sue JMnea 
Van Ingen — New York coots uphold the steamboat monopoly* 
and a s se r t the ri^t of the State to control navigation on its wateti 

— The opinion of Chief Justice Kent — The controversy be- 
tween Aaron Ogden uid Thomas Gibbons — Ogden, operating 
under a license ftrom liviofiston and Fulton, sues Gibbons — 
State courts again sustain the monopoly acts ^-Gibbons ap- 
peals to the Supreme Court — Ogden retains William Pinkney 

— Tbe case is dismissed^ refiled. and continued — Pinkney 
dies — Argument not heard for three years — Severid States 
pass taonOjpfAy laws — Prodigious development of steamboat 
navigation — ^ Hie demand for internal improvements stimulated 

— The slave interests deny power of Congress to build roads and 
canals — The daring speech of John Randolph — Dedares 
slavery imperiled — Hireatens armed resistanoe — BemaricaUe 
alignment of opposing forees when Gibbons fw. Ogden is heard ixk 
Supreme Comt — Webster makes the greatest of his legal argu- 
ments — Marshall's opinion one of his most masterful state 
papers — His former opinion on the Circuit Bendi in the case of 
the Brig Wilson anticipates that in Gibbons ot. Ogden — Tbe 
power of Congress over interstate and foreiga conmieroe absolute 



) 



CONTENTS xi 

and eadittKe -^ MirtJiall fttiadn the enemies of NationaiMm — 
The umnecfiate effect of Marthall's opinion on steamboat trans- 
portation, maaufactoring, and mining — Later effect still more 
powerful — Baflway der^opment incakmlaUy encouraged — Be- 
siiHs to-daj of Marxian's theory of commeroe — Litigation in 
New York following the Supreme Court's decision — The whole- 
hearted Nationalism of OM Justice Savage and Chancellor 
Sanf ord — Popularity of MarshalTs opinion — The attack in Con- 
gress on the Silpftme Court weakens — Martin Van Buren, while 
denouncing the *Mdidatry " for the Sufweme Court, pays an exalted 
tribute to lisnhall: "The ablest judge now sitting on any judicial 
bendiin the world** — Senator John Rowan of Kentucky odls the 
new popular attitude toward the Suineme Court "a judicial 
su per stiti on** — The case of Brown m. Maryhmd — Marshall's 
opinion oomi^etes his Constitutional expositions of the commerce 
dause — Taa^s remarkable acknowledgment. 

IX. THE SUFBEME CX)NSERVATIVB 461 

Mardiall*s dislike for the formal society of Washington — His 
diarming letters to his wife — He carefully aroids partisan poli- 
tks '- Refrains from voting for twenty years — Is irritated by 
newspaper report of partisanship — Writes denial to the Richmond 
Whig — day writes Biarshall — The Chief Justice explains inci" 
dent to Story -^ Marshall's interest in politics — His letter to his 
brother — Permits himself to be dected to the ^ginia Constitu- 
tional Convention of 1889-80 -^ffis disgust at his ''weakness*' 
-^ Writes Story amusing account — Issues before the convention 
deeply trouUe him — He is frankly and unshakaUy conservative 
— The antiquated and undemocratic State Constitution of 1776 
and the aristocratic ssrstem under it — Jefferson's brilliant indiot- 
BDMnt of both in a private letter — His alarm and anger when his 
letter is circulated — He tries to withdraw it — Marshall's inter- 
cat in the well-bang of the people — His prophetic letter to Charles 
F. Meroer — Marshall's only public ideal that of Nationalism — 
His views on slavery — Letters to Gurley and Pickering — His 
judicial opinions involving slavery and the slave trade: The An- 
telope; Boyce tm, Anderson — Extreme conservatism of Marshall's 
views on legisiation and private prcqperty — Letter to Greenhow 
*— Opmions in Ogden 9$. Saunders and Bank s#. Dandridge — 
Marshall's work in the Virginia convention — Is against any re- 
form — Writes Judiciary report — The aristocratic County Court 
system — Marshall defends it — Impressive tributes to Marshall 
from members of the convention — His animated and powerful 
speedies on the Judiciary — He answers Giles, Tasewell, and Ca- 
bell, and carries the c onv e nt ion by an asUmishing majority — Is 
opposed to manhood suffrage and exclusive white ba^ of repre- 
sentation -— He pleads for compromise on the latter subject and 
prevails — Reasons for his course in the convenUon — He prob- 
ably prevents civil strife and bloodshed in Virginia — The con- 
veation adjoorai — Histary of Craig v$. MisKUffi — Marshall's 



i 

! 
I 
( 



xii CONTENTS \ 



stern opioion — The splendid eloquence of his dosing passage — 
Three members of the Supreme Court file dissenting opinions — 
Marshall's melancholy comments on them — Congressional as- 
saults on the Supreme Court renewed — They are astonishingly 
weak, and are overwhelming defeated, but the vote is ominous. 

X. THE FINAL CONFLICT 518 

Sadness of Marshall's last years — His health fails — Contem- 
plates resigning — His letters to Story — Goes to Philaddphia for 
surgical treatment — Remarkable resolutions by the bar of that 
city — Marshall's response — Is successfully operated upon by 
Dr. Physick — His cheerfulness — Letters to his wife — Mrs. Mar- 
shall dies — Marshall's grief — His tribute to her — He is de- 
pressed by the course of President Jadcson — The warfare on the 
Bank of the United States — Congress recharters it — Jackson 
vetoes the Bank Bill and assails Marshall's opinions in the Bank 
cases — llie people acclaim Jadcson's veto — Marshall is disgusted 

— His letters to Story — He is alarmed at the growth of disunion 
sentiment — Causes of the recrudescence of Localism — Mar-. 
shall's theory of Constitutional construction and its rdation to 
slavery — The tariff — The South gives stem warnings — Dan- 
gerous agitation in South Carolina — Georgia asserts her "sover- 
eignty" in the matter of the Cherokee Indians — llie case of 
George Tassels — Georgia ignores the Supreme Court and rebukes 
Marshall — The Cherokee Nation v$. Georgia — The State again 
ignores the Supreme Court — Marshall ddivers his opinion in that 
case — ^Worcester w. Georgia — ^The State defies the Supreme Court 
— Marshall's opinion — Georgia flouts the Court and disregards its 
judgment — Jackson supports Georgia — Story's melancholy letter 

— The case of James Graves — Georgia once more defies the Su- 
preme Court and threatens secession — South Carolina encouraged 
by Georgia's attitude — Nullification sentiment grows rapidly — 
The Hayne-Webster debate — Webster's great speech a condensa- 
tion of Marshall's Nationalist opinions — Similarity of Webster's 
language to that of Marshall — ^The aged Madison repudiates Nulli- 
fication — Marshall, pleased, writes Story: *' Mr. Madison b him- 
self again" ~ The Tariffs of 1828 and 1832 infuriate South Caro- 
lina — Scenes and opinion in that State — Marshall clearly stales 
the situation — His letters to Story — South Carolina proclaims 
Nullification — Marshall's militant views — Jackson issues his 
Nullification Proclamation — It is based on Marshall's theory of 
the Constitution and is a triumph for MarahaU — Story's letter — 
Hayne replies to Jackson — South Carolina files to arms — Vir- 
ginia intercedes — Both parties back down: South Carolina 
suspends Nullification and Congress passes Tariff of 1833 — Mar- 
shall describes conditions in the South — His letters to Story — He 
ahnost despairs of the Republic — Public appreciation of his char- 

- acter — Story dedicates his Commentaries to Marshall — Mar- 
shaH presides over the Supreme Court for the last time — His fatal 
illness — He diet At Philaddphia — The funeral at Richmond — 



\ 

V 



CONTENTS xiii 

Widespread ezpieasions of sorrow — Only one of condemnation — 
The long-continued mourning in Virginia — Marshall's old dub re- 
solves never to fill his place or increase its membership — Story's 
*' inscription for a cenotaph" and the words Marshall wrote for 
his tomb. 



WORKS CITED IN THIS VOLUME 595 

INDEX 618 



/ 
/ 



ILLUSTRATIONS 

JOHN MARSHALL Colar>ed FronUsfieee 

¥tQmk the portiait painted in 1889 by Henry Inmai)* in the possession 
of llie Law Association of Phi^delph^a. A copy was presented to the 
Cpnnectieut State Library by Senator Fn^ik B. Brandegee and was 
chosen by the Secretary of the Treasury out of all existing portraits to 
be engraved on steel for use as a vignette on certain government bonds 
and treasury notes. 

"^JOSJTH STORY 96 

Fdmb a orayon drawing by his ton, WilUam Wetmore Story, in the pos- 
se^siim of the fainily. 

^WnXIAM PINKNEY J8« 

From the original painting by Charles Wilson Peak, in the possession 
of Pinkney's grandson, William Pinkney Whyte, Esq., Baltimore, 
Biaiyland. 

^JOSEPH HOPKINSON 254 

Ywm a portrait by Thomas Sully owned by Dartmouth CoQege. 

^ASSOCIATE JUSTICES SITTING WITH MARSHALL IN 
THE CASE OF MCCULLOCH VERSUS MARYLAND: 
BUSHROD WASHINGTON, WILLIAM JOHNSON, 
BR0CKH0I5T LIVINGSTON. THOMAS TODD, 
JOSEPH STORY, GABRIEL DUVAL . . .282 

From etchings by Max and Albert Rosenthal in Hampton L. Car- 
son's history of The Supreme Court qf the United State*, reproduced 
throuj^ the courtesy of the Lawyers' Cooperative Publishing Com- 
pany, Rochester, New York. The etchings were made from originals 
as follows: Washington, from a painting by Chester Harding in the 
po ss e ss ion of the family; Johnson, from a painting by Jarvis in the pos- 
session of the New York Historical Society; Livingston, from a painting 
in the possession of the family ; Todd, from a painting in the possession 
of the family; Story, from a drawing by^^^lliam Wetmore Story in 
the possession of the family; Duyal, from a painting in the Capitol at 
Washington. Mr. Justice Todd is included as a member of the Court 
at that time, althouc^ absent because of illness. 

^ SPENCER ROANE 814 

Ttom a painting in the Court of Appeals at Richmond, Virginia. 

•"JOHN TAYLOR OF CAROLINE 880 

From a painting in the possession of the Virginia State library, 
Bidmiond. 



XVI ILLUSTRATIONS 

^SILHOUETTE OF JOHN MABSHALL . . . . 46£ 

From the original found in the desk of Mr. Justice Story 

^ASSOCIATE JUSTICES AT THE LAST SESSION OF THE 
SUPREME COURT OVER WHICH JOHN MABSHALL 
PRESIDED: JOSEPH STORY, SMITH THOMPSON, 
JOHN McLEAN, HENRY BALDWIN, JAMES M. 
WAYNE 584 

From etchings by Max and Albert Rosenthal in Hampton L. Carson's 
history of The Supreme Court of the Untied 8iates,TepTodwxd through 
the courtesy of the Lawyers' Cooperative Publishing Company, Roches- 
ter, New York. The etchings were made from originals as follows; 
Story, from a drawing by William Wetmore Story in the possession of 
the family; Smith Thompson, from a painting by Dumont in the pos- 
session of Smith Thompson, Esq., Hudson, New York; McLean, from 
a painting by Ives, in the possesaon of Mr. Justice Brown; Baldwin^ 
from a painting by T^mlwljp in the possession of the family; Wayne, 
from a photograph by Braay in the possession of Mr. Justice FiekL 



UST OF ABBREVIATED TITLES MOST 
FREQUENTLY CITED 

AU references here are to the Lid cf Authoriiiee at the end cf this wdums 

Adams: 17.8. See Adams, Hemy. History of the United States. 

Ambler: Ritchie. See Ambler, Charles Henry. Thomas Ritchie: 
A Study in Virginia Politics. 

ilifie^: Ames. See Ames, Fisher. Works. 

Anderson. See Anderson, Dice Robins. William Branch Giles. 

Babcock. See Babcock, Kendric Charles. Rise of American 
NationaUty, 1811'181». 

Bayard Papers: Donnan. See Bayard, James Asheton. Papers 
from 1796 to 1815. Edited by Elizabeth Donnan. 

Branch Historical Papers. See John P. Branch Historical Pa- 
pers. 

CatteralL See Catterall, Ralph Charles Henry. Second Bank 
cS the United States. 

Channing: Jeff. System. See Channing, Edward. Jeffersonian 
System, 1801-1811. 

Channing: 17j8. See Channing, Edward. History of the United 
States. 

Curtis. See Curtis, George Ticknor. Life of Daniel Webster. ' 

Dewey. See Dewey, Davis Rich. Financial History of the 
United States. 

Dillon. See Dillon, John Forrest. John Marshall: Life, Charac- 
ter, and Judicial Services. 

JB.JF. r.:Thwaites. See Thwaites, Reuben Gold. Early West- 
em Travds. 

Farrar. See Farrar, Timothy. Report of the Case of the Trus- 
tees of Dartmouth College against William H. Woodward. 

Hildreth. See Hiklreth, Richard. History of the United States 
of America. 

Hunt: Livingston. See Hunt, Charles Havens. Life of Edward 
Livingston. 

Kennedy. See Kennedy, John Pendleton. Memoirs of the Life 
erf William Wirt. 

King. See King, Rufus. Life and Correspondence. Edited by 
Charles R. King. 



xvffi LIST OP ABBREVIATED TITLES 

Lodge: Cabot. See Lodge, Henry Cabot. Life and Letters of 
George Cabot. 

Lord. See Lord, John King. A History of Dartmouth College, 
1815-1909, 

McMaster. See McMaster, John Bach. A History of the Peo- 
ple of the United States. 

Memoirs^ J. Q^.iAdam^. See Adams, Jo)in Quijiqr. Mempirs. 
Edited by Charles Prancis Adams. 

"Moriaon: OtU. iS^ Morison, Samuel Eliot. life and Letters of 
Harrison Gray Otis. 

Morris. See Morris, Gouvemeur. Diary and Letters. Edited 
by Anne Cary Morris. 

NJ!. FederalUm: Adams. See Adams, Henry. Documents re- 
lating to New-England Federalism, 1800-1815. 

Parton: Jackson. See Parton, James. Life of Andrew Jackson* 

Phuner. iSe^ Plumer, William, Jr. Life of William Plumer. 

Prw. Correa.: Webster. See Webster, Daniel Private Corre- 
spondence. Edited by Fletcher Webster. 

Quincy: Quincy. See Quincy, Edmund. Life of Josiah Qiiincy 
of Massachusetts. 

Bandall. See Randall, Henry Stephens. Life €l Thomas Jef« 
ferson. 

Records Fed. Corw.: Farrand. See Records of the Federal Con- 
vention of 1787. Edited by Max Farrand. 

Richardson. See Richardson, James Daniel A Compilation of 
the Messages and Papers of the Presidents, 1789-1897. 

ghirley. iSe« Shirley, John M. The Dartmouth Collie Causes 
and the Supreme Court of the United States. 

Story. See Story, Joseph. Life and Letters. Edited by Wik 
liam Wetmore Story. 

Sumner: Hist. Am. Currency. See Sumner, William Graham. 
A History of American Currency. 

Sumn^: Jameson* See Sumner, William Graham. Andrew 
Jackson. As a Public Man. 

Tyler: Tyler. See Tyler, Lyon Gardiner. Letters and Times of 
the Tylers. 

Works: Ford. iSd^ Jefferscm, Thomas. Worics. Edited by Paul 
Leicester Ford. 

Wrttings: Adams. See Gallatin^ Albert, Writings. Edited hj 
Henry Adams. 

Writings: Hunt, See Madison, James. Writings. Edited by 
Gaillard Hunt. 



THE LIFE OF JOHN MARSHALL 



THE LIFE OF JOHN MARSHALL 

CHAPTER I 

THE PERIOD OF AMERICANIZATION 

Great Britiun is fighting our battles and the battles of numkind, and France is 
combating for the power to enslave and plunder us and all the world. 

(Fisher Ames.) 

Thougji creiy one of these Bugbears is an empty Phantom, yet the People 
seem to believe every article of this bombastical Creed. Who shall touch 
these blind eyes. (John Adams.) 

The objeet of Bngland, long obvious, b to claim the ocean as her domain. 

(Jefferson.) 

I am for resistance by the sixwd. (Henry Clay.) 

Into the life of John Marshall war was strangely 
woven. His birth, his young manhood, his public 
services before he became Chief Justice, were coin- 
cident with, and aflPected by, war. It seemed to be 
the decree of Fate that his career should march side 
by side with armed conflict, and that the final phase 
of that career should open with a war — a war, too, 
which brought forth a National consciousness among 
the people and demonstrated a National strength 
hitherto imsuspected in their fundamental law. 

Yet, while American Nationalism was Marshall's 
one and only great conception, and the fostering of 
it the purpose of his Hfe, he was wholly out of sym- 
pathy with the National movement that led to our 
second conflict with Great Britain, and against the 
continuance of it. He heartily shared the opinion, 
of the Federalist leaders that the War of 1812 was 
unnecessary, unwise, and unrighteous. 

By the time France and England had renewed 



2 JOHN MARSHALL 

hostilities in 1803, the sympathies of these men had 
become wholly British. The excesses of the French 
Revolution had started them on this course of 
feeling and thinking. Their detestation of Jeflferson, 
their abhorrence of Republican doctrines, their re- 
sentment of Virginia domination, all hastened their 
progress toward partisanship for Great Britain. 
They had, indeed, reverted to the colonial state of 
mind, and the old phrases, "the mother coxmtry,** 
"the protection of the British fleet, "^ were forever 
on their lips. 

These Federalists passionately hated France; to 
them France was only the monstrous child of the ter- 
rible Revolution which, hi the name of hmnan ri^ts» 
had attacked successfully every idea dear to their 
hearts — upset all order, endangered all property, 
overturned all respectability. They were sure that 
Napoleon intended to subjugate the world; and that 
Great Britain was our only bulwark against the ag- 
gressions of the Conqueror — that "varlet" whose 
" patron-saint [is] Beelzebub, ** as Gouvemeur Morris 
referred to Napoleon.^ 
So, too, thought John Marshall. No man, except 
> his kinsman Thomas Jefferson, cherished a prej- 
udice more fondly than he. Perhaps no better ex- 
ample of first impressions strongly made and tena- 
ciously retained can be found than in these two meiu 
Jefferson was as hostile as Marshall was friendly to 
Great Britain; and they held exactly opposite sen* 
timents toward France. Jefferson's strongest title 

^ ''The navy of Britain is our shielcL'' (Pickering: OpmLetter[FA. 
16, 1808] to Governor James SuUwan, 8; iai^ra, 5, 9-10, ^S-^Q, 45-46.) 
* Diary and Letters qf Qotwemeur Morris: Morris, n> 548. 



THE PERIOD OP AMERICANIZATION 3 

to immortality was the Declaration of Independ- 
aioe; nearly all of his foreign embroilments had 
been with British statesmen. In British conserva- 
tism he had found the most resolute opposition to 
those democratic reforms he so passionately cham- 
pioned, and which he rightly considered the mani- 
festations of a world movement.* 

And JeflFerson ad<^ed France, in whose entrancing 
capital he had spent his happiest years. There his 
radical tendencies had found encouragement. He 
looked upon the French Revolution as the breaking 
of humanity's chains, politically, intellectually, spir- 
itually.* He believed that the war of the allied gov- 
ernments of Europe against the new-bom French 
Republic was a monarchical combination to extin- 
guish the flame of liberty which France had lighted. 

Marshall, on the other hand, never could forget his 
experience with the French. And his revelation of 
what he had endured while in Paris had brought him 
his first National fame.' Then, too, his idol, Wash- 
ington, had shared his own views — indeed, Mar- 
shall had been instrumental in the formation of 
Washington's settled opinions. Marshall had cham- 
pioned the Jay Treaty, and, in doing so, had neces- 
sarily taken the side of Great Britain as opposed to 
Prance.* His business interests * powerfully inclined 
him in the same direction. His personal friends were 
the ageing Federalists. 

^ Jefferson to D'lvemois, Feb. 6, 1795, Wotki of Thomas Jefferson: 
Pofd» Tm, 165. 

' Jefferson to Short, Jan. 8, 1798, ib. vn, SOS; same to Maaon, 
Feb. 4, 1791, t&. vi, 1S5. 

' See vol. n, 854, of this work. 

« lb. 188-89. * The Fairfax transaction. 



> 



4 JOHN MARSHALL 

He had also become obsessed with an ahnost reli- 
gious devotion to the rights of property, to steady 
) government by "the rich, the wise and good,"^ to 
"respectable" society. These convictions Marshall 
f oimd most firmly retained and best defended in the 
conmiercial centers of the East and North. The 
stoutest champions of Marshall's beloved stabiUty 
of institutions and customs were the old Federal- 
ist leaders, particularly of New England and New 
York. They had been his comrades and associates 
in bygone days and continued to be his intimates. 

In short, John Marshall had become the personifi- 
cation of the reaction against popular government 
that followed the French Revolution. With him and 
men of his cast of mind. Great Britain had come to 
represent all that was enduring and good, and France 
all that was eruptive and evil. Such was his out- 
look on social and political life when, after these 
traditional European foes were again at war, their 
spoliations of American commerce, violations of 
American rights, and insults to American honor 
once more became fiagrant; and such continued to 
be his opinion and feeling after these aggressions 
had become intolerable. 

Since the adoption of the Constitution, nearly 
all Americans, except the yoimger generation, had 
become re-Europeanized in thought and feeling. 
Their partisanship of France and Great Britain 
relegated America to a subordinate place in their 
minds and hearts. Just as the anti-Federalists and 

^ The phrase used by the Federalists to designate the opponents of 
democracy. 



THE PERIOD OF AMERICANIZATION 6 

their successors^ the Republicans, had been more 
concerned in the triumph of revolutionary France 
over ^* monarchical" England than in the mainte- 
nance of American interests, rights, and honor, so 
now the Federalists were equally violent in their 
championship of Great Britain in her conflict with 
the France of Napoleon. Precisely as the French 
partisans of a few years earlier had asserted that 
the cause of France was that of America also,^ 
the Federalists now insisted that the success of. 
Great Britain meant the salvation of the United 
States. 

"Great Britain is fighting our battles and the bat- 
tles of mankind, and France is combating for the 
power to enslave and plunder us and all the world,'* * 
wrote that faithful interpreter of extreme New 
England Federalism, Fisher Ames, just after the 
European conflict was renewed. Such opinions were 
not confined to the North and East. In South Car- 
olina, John Rutledge was under the same spell. 
Writing to "the head Quarters of good Princi- 
ples," Boston, he avowed that "I have long consid- 
ered England as but the advanced guard of our 
Country. • . If they fall we do." ' Scores of quota- 
tions from prominent Federalists expressive of the 
same views might be adduced.^ Even the assault on 

1 See vol. n, 24-27, 9«-96, 106-07, l«^-«8, of this work. 

' Ames to Dwight, Oct. 81, 1808, Works of Fisher Ames: Ames, 
I, 880; and see Ames to Gore, Nov. 16, 1808, ib. 882; also Ames to 
Quincy, Feb. 12, 1806, ib. 860. 

* BuUedge to Otb, July 29, 1806, Morison: Life and Letters of 
Harrison Gray OHs, i, 282. 

* The student should examine the letters of Federalists collected 
in Heniy Adams's NeuhEngland Federalism; those in the Life and 



% 



6 JOHN MABSHALL 

'the Chesapeake did not change or even soften them.^ 
On the other hand, the advocates of France as 
ardently upheld her cause, as fiercely assailed Great 
Britain.^ 

Never did Americans more seriously need emand-* 
pation from foreign influence than in the early dec- 
ades of the Republic — never was it more vital to 
their well-being that the people should develop an 
American spirit, than at the height of the Napo- 
leonic Wars. 

Upon the renewal of the European conflict, Great 
Britain announced wholesale blockades of French 
ports,* ordered the seizure of neutral ships wher- 
ever found carrying on trade with an enemy of 
England; ^ and forbade them to enter the harbors 
of immense stretches of European coasts/ In re- 
ply, Napoleon declared the British Islands to be 
under blockade, and ordered the capture in any 
waters whatsoever of all ships that had entered 
British harbors/ Great Britain responded with the 
Orders in Coimcil of 1807 which, in effect, prohib- 

Correspondence of Rtfus King; in Lodge's Life and LeUera of Oeorge 
Cabot; in the Works of Fisher Ames and in Monson's OHs. 

1 See Adams: History rf the United States, iv, 29. 

^ Once in a long while an impartial view was expressed: ^'I think 
myself sometimes in an Hospital of Lunaticks» when I hear some of 
our Politicians eulogizing Bonaparte because he humbles the Engjlish; 
& others worshipping the latter, under an Idea that they will shelter 
us, & take us under the Shadow of their Wings. They would join, 
rather, to deal us away like Cattle." (Peters to Pickering, Feb. 4» 
1807, Pickering MSS. Mass. Hist Soc.) 

' See Harrowby's Circular, Aug. 9, 1804, American State Papers, 
Foreign Relations, m, 266. 

^ See Hawkesbuiy's Instructions, Aug. 17, 1805, ib, 

^ Fox to Monroe, April 8 and May 16, 1806, ib. 267. 

• The Berlin Decree, Nov. 21, 1806, ib. 280-01. 



THE PERIOD OF AMERICANIZATION 7 

ited the oceans to neutral vessels except such as 
traded directly with England or her colonies; and 
even this commerce was made subject to a special 
tax to be paid into the British treasury.^ Napo- 
leon's swift answer was the Milan Decree,* which, 
amcmg other things, directed all ships submitting 
to the British Orders in Council to be seized and 
confiscated in the ports of France^or her allies, or 
captured on the high seas. 

All these "decrees," "orders," and "instructions" 
wore, of course, in flagrant violation of international 
law, and were more injurious to America than to all 
other neutrals put together. Both belligerents bore 
down upon American commerce and seized Ameri- 
can ships with equal lawlessness.' But, since Great 
Britain commanded the oceans,^ the United States 
sufiFered far more severely from the depredations 
of that Power.* Under pressure of conflict. Great 

^ Orders in Council, Jan. 7 and Nov. 11» 1807, Am. State PaperB^ 
For. Ed, m, 267-78; and see Chamiing: J^ersonum System^ 199. 
« Dec. 17, 1807, Am. State Papers, Far. Ed. m, «90. 

* Adams: U.S. v, 81. 

^ '^England's naval power stood at a height never reached before or 
since by that of any other nation. On every sea her navies rode, not 
only triumphant, but with none to dispute their sway.*' (Roose- 
velt: Naval War cf 1812, «2.) 

* See Report, Secretary of State, July 6, 1812, Am. State Papers, 
Far. Ed. m, 588^. 

'^These decrees and orders, taken together, want little of amounting 
to a declaration that every neutral vessel found on the high seas, 
whatsoever be her cargo, and whatsoever foreign port be that of her 
departure or destination, shall be deemed lawful prize.*' (Jefferson to 
Congress, Special Message, March 17, 1808, Works: Ford, xi, 20.) 

^The only mode by which either of them [the European belliger- 
ents] could further annoy the other • . was by inflicting . . the tor- 
ments of starvation. This the contending parties sought to accom- 
plish by putting an end to all trade with the other nation." (Channing: 
J^. Sustem, 169.) 



8 JOHN MARSHALL 

Britain increased her impressment^ of American 
sailors. In eflfect, om* ports were blockaded.^ 

JeflFerson's lifelong prejudice against Great Britain * 
would permit him to see in all this nothing but a 
sordid and brutal imperialism. Not for a moment did 
he understand or consider the British point of view. 
England's " intentions have been to claim the ocean 
as her conquest, & prohibit any vessel from navigat- 
ing it but on . . tribute," he wrote.* Nevertheless, 
he met Great Britain's orders and instructions with 
hesitant reconmiendations that the country be put 
in a state of defense; only feeble preliminary steps 
were taken to that end. 

* Theodore Roosevelt, who gave this matter very careful study, 
says that at least 20,000 American seamen were impressed. (Boose- 
velt, footnote to 42.) 

''Hundreds of American citizens had been taken by force from 
under the American flag, some of whom were already lying beneath 
the waters off Cape Trafalgar. " (Adams : U.S. in, 202.) 

See also Babcock: Rise of American Nationality^ 10-11 \ and Jef- 
ferson to Crawford, Feb. 11, 1815, Worhe: Ford, xi, 451. 

^ See Channing: Jeff. System, 184-94. The principal works on the 
War of 1812 are, of course, by Henry Adams and by Alfred Mahan. 
But these are very extended. The excellent treatments of that period 
are the J^ersonian System, by Edward Channing, and Rise of Amer^ 
ican Nationality, by Kendric Charles Babcock, and Life and Letters 
cf Harrison Gray Otis, by Samuel Eliot Morison. The latter work 
contains many valuable letters hitherto unpublished. 

' But see Jefferson to Madison, Aug. 27, 1805, Works: Ford, x, 
172-73; same to Monroe, May 4, 1806, i6. 261^-63; same to same, Oct. 
26, 1806, i&. 296-97; same to Lincohi, June 25, 1806, ih. 272; also 
see Adams: U,S, m, 75. While these letters speak of a temporary 
alliance with Great Britain, Jefferson makes it clear that they are 
merely diplomatic maneuvers, and that, if an arrangement was made» 
a heavy price must be paid for America's cooperation. 

Jefferson's letters, in general, display rancorous hostility to Great 
Britain. See, for example, Jefferson to Paine, Sept. 6, 1807, Works: 
Ford, X, 498; same to Leib, June 23, 1808, ib. xi, 34-35; same toMeigs» 
Sept. 18, 1813, i6. 334-35; same to Monroe, Jan. 1, 1815, ib. 443. 

^ Jefferson to Dearborn, July 16, 1810, i6. 144. 



k 



THE PERIOD OF AMERICANIZATION 9 

The President's principal reliance was on the 
device of taking from Great Britain her American 
markets. So came the Non-Importation Act of 
April, 1806, prohibiting the admission of those 
products that constituted the bulk of Great Brit- 
ain's inmiensely profitable trade with the United 
States.^ This economic measure was of no avail — it 
amounted to httle more than an encouragement of 
successful smuggling. 

When the Leopard attacked the Chesapeake,* 
Jefferson issued his proclamation reciting the "enor- 
mity *' as he called it, and ordering all British armed 
vessels from American waters.* The spirit of Amer- 
ica was at last aroused.^ Demands for war rang 
throughout the land.^ But they did not come from 
the lips of Federalists, who, with a few exceptions, 
protested loudly against any kind of retaliation. 

John Lowell, unequaled in talent and learning 
among the brilliant group of Federalists in Boston, 
wrote a pamphlet in defense of British conduct.* 

> AnnaU, 9th Cong. 1st Seas. 1259-62; also see ''An Act to Pro- 
hibit the Importation of Certain Goods, Wares, and Merchandise/' 
chap. 29, 1806, Latos of the United States, iv, S6-S8. 

* See vol. in, 475-76, of this work. 

« Jefferson's Proclamation, July 2, 1807, Works : Ford, x, 4S4-47; 
and Messages and Papers of the Presidents: Richardson, i, 421-24. 

* ''This country has never been in such a state of excitement since 
the battle of Lexington." (Jefferson to Bowdoin, July 10, 1807, 
Works: Ford, x, 454; same to De Nemours, July 14, 1807, ib. 460.) 

For Jefferson's interpretation of Great Britain's larger motive for 
perpetrating the Chesapeake crime, see Jefferson to Paine, Sept. 6» 
1807, ib. 498. 

* Adams: U.8. iv, 88. 

* Lowell: Peace Without Dishonor ^ War Without Hope: by "A 
Yankee Farmer," 8. The author of this pamphlet was the son of one 
ci the new Federal judges appointed by Adams under the Federalist 
Judiciary Act of 1801. 



10 JOHN MARSHATiL ' 

It was an uncommonly able performance, bright, in- 
formed, witty, well reasoned. " Despising the threats 
of prosecution for treason," he would, said Lowell, 
use his right of free speech to save the country from 
an unjustifiaUe war. What did the Chesapeake 
incident, what did impressment of Americans, what 
did anything and everything amount to, compared 
to the one tremendous fact of Great Britain's 
struggle with France? All thoughtful men knew that 
Great Britain alone stood between us and that 
slavery which would be our portion if France should 
prevail.^ 

Lowell's sparkling essay well set forth the intense 
conviction of nearly all leading Federalists. Giles 
was not without justification when he branded them 
as "the mere Anglican party."* The London press 
had approved the attack on the Chesapeake, ap- 
plauded Admiral Berkeley, and even insisted upon 
war against the United States.' American Federal- 
ists were not far behind the Times and the Mom- 
ing Post. 

Jeflferson, on the contrary, vividly stated the 
thought of the ordinary American : "The English 
being equally tyrannical at sea as he [Bonaparte] is 
on land, & that tyranny bearing on us in every point 
of either honor or interest, I say, *down with Eng- 

1 See Peace WUhotU Diehonor—War Without Hope, 8(M0. 

* Giles to Monroe* March 4» 1807; Anderson: William Branch 
Giles — A Study in the Politics cf Virginia, 179(hl8S0, 108. 

Thomas Ritchie, in the Richmond Enquirer, properly denomiced 
the New England Federalist headquarters as a ''hot-bed of treason.*' 
(Enquirer, Jan. 24 and April 4, 1809, as quoted by Ambler: Thomas 
Ritchie — A Study in Virginia Politios, 46.) 

« Adams: U.S. iv, 41-44, 54. 



THE PERIOD OF AMERICANIZATION 11 



land' and as for what Buonaparte is then to do to 
us, let us trust to the chapter of accidents, I cannot, 
with the Anglomen, prefer a certain present evU to 
a future hypothetical one/' ^ 

But the President did not propose to execute his 
policy of "down with England" by any such horrid 
method as bloodshed. He would stop Americans 
from trading with the world — that would prevent 
the capture of our ships and the impressment of our 
seamen.' Thus it was that the Embargo Act of 
December, 1807, and the supplementary acts of 
January, March, and April, 1808, were passed.^ 
All exportation by sea cor land was rigidly forbidden 
under heavy penalties. Even coasting vessels were 
not allowed to continue purely American trade un-. 
less heavy bond was given that landing would be 
made exclusively at American ports. Flour could be 
shipped by sea only in case the President thought 
it necessary to keep from hunger the population of 
any given port.* 

^ Jefferson to Letper, Aug. 21, 1807, Worla: Ford» x, 488-S4. 

Jefferson tenaciously dung to his prejudice against Great Britain: 
^'The object of England, long obvious, is to claim the ocean as her 
domain. . . We believe no more in Bonaparte's fighting merely for the 
liberty of the seas, than in Great Britain's fighting for the liberties of 
mankind." (Jefferson to Maury, April 25, 1812, ib. xi, 240-41.) He 
never failed to accentuate his love for France and his hatred for 
Napoleon. 

* ''During the present paroxysm of the insanity of Europe, we have 
thought it wisest to break off all intercourse with her." (Jefferson to 
Armstoong, May 2, 1808, ib. 80.) 

' ''Three alternatives alone are to be chosen from. 1. Embargo. 2. 
War. 3. Submission and tribute, &, wonderful to tell, the last will 
not want advocates." (Jefferscm to Lincoln, Nov. 18, 1808, ib. 74.) 

« See Act of December 22, 1807 {Atmals, 10th Cong. 1st Sess. 
2814-15); of January 9, 1808 {ib. 2815-17); of March 12, 1808 (ib. 
2889-42); and of April 25, 1808 (t6. 2870-74); Treasury Circulars of 



< 



> 



12 JOHN MARSHALL 

Here was an exercise of National power such as 
John Marshall had never dreamed of. The eflfect 
was disastrous. American ocean-carrying trade was 
.ruined ; British ships were given the monopoly of 
the seas.^ And England was not "downed/* as Jef- 
ferson expected. In fact neither France nor Great 
Britain relaxed its practices in the least.* 

The conmiercial interests demanded the repeal of 
the Embargo laws,* so ruinous to American shipping, 
so destructive to American trade, so futile in re- 
dressing the wrongs we had suffered. Massachu- 
setts was enraged. A great proportion of the ton- 
nage of the whole country was owned in that State 
and the Embargo had paralyzed her chief industry. 
Here was a fresh source of grievance against the 
Administration and a just one. Jefferson had, at 
last, given the Federalists a real issue. Had they 

May 6 and May 11, 1808 (Embargo Laws, 19-20, 21-22); and Jef- 
f arson's letter *' to the Crovemours of Orleans, Georgia, Sou^ Carolina, 
Massachusetts and New Hampshire," May 6, 1808 (i6. 20-21). 

Joseph Hopkinson sarcastically wrote: ''Bless the Embargo — 
thrice bless the Presidents distribution Proclamation, by which his 
minions are to judge of the appetites of his subjects, how much food 
they may reasonably consume, and who shall supply them . . whether 
under the Proclamation and Embargo System, a chUd may be law- 
fully bom without a clearing out at the Custom House." (Hop- 
kinson to Pickering, May 25, 1808, Pickering MSS. Mass. Hist. 
Soc.) 

^ Professor Channing says that ''the orders in council had been 
passed originally to give English ship-owners a chance to regain some 
of their lost business." (Channing: JejJ, System^ 261.) 

' Indeed, Napoleon, as soon as he learned of the American Em- 
bargo laws, ordered the seizure of all American ships entering French 
ports because their captains or owners had disobeyed these Ameri- 
can statutes and, therefore, surely were aiding the enemy. (Arm- 
strong to Secretary of State, April 28, postscript of April 25, 1808, 
Am. State Papers, For. Rd. m, 291.) 

< Morison: 0^, n, 10-12; see also Channing: Jejf. SyHem, 183. 



} 

THE PERIOD OF AMERICANIZATION IS 

availed themselves of it on economic and purely 
American grounds, they might have begun the 
rehabilitation of their weakened party throughout 
the country. But theirs were the vices of pride and 
of age — they could neither learn nor forget; could 
not estimate situations as they really were, but only 
as prejudice made them appear to be. 

As soon as Congress convened in November, 1808, 
New England opened the attack on JeflFerson's re- 
taliatory measures. Senator James Hillhouse of 
Connecticut oflFered a resolution for the repeal of the 
obnoxious statutes. "Great Britain was not to be 
threatened into compliance by a rod of coercion,'*^ 
he said.^ Pickering made a speech which might 
well have been delivered in Parliament.^ British 
maritime practices were right, the Embargo wrong, 
and principally injurious to America.^ The Orders in 
Council had been issued only after Great Britain 
"had witnessed . . these atrocities" committed by 
Napoleon and his plundering armies, " and seen the 

^ Annals, 10th Cong. 2d Sess. ^. 

The intensity of the interest in the Embargo is illustrated by Giles's 
statement in his rq>ly to EUllhouse that it ''almost . . banish[ed] every 
other topic of conversation/' {lb. 94.) 

' Four years earlier, Pickering had plotted the secession of New 
England and enlisted the support of the British Minister to accom« 
plish it. (See vol. m, chap, vn, of this work.) His wife was an 
Englishwoman, the daughter of an officer of the British Navy. 
(Pickering and Upham: Life qf Timothy Pickering^ i, 7; and see 
Pickering to his wife, Jan. 1, 1808, ib. iv, 121.) His nephew had been 
Consul-Greneral at London under the Federalist Administrations and 
was at this time a merchant in that city. (Pickering to Rose, March 
22, 1808, New-England Federalism: Adams, 870.) Pickering had been, 
and still was, carrying on with George Rose, recently British Minister 
to the United States, a correspondence all but treasonable. (Mori- 
son: OtiSf n, 6.) 

< Annals, 10th Cong. 2d Sess. 175, 177-78. 



14 JOHN MARSHALL 

deadly weapon aimed at her vitals/' Yet JeflFerson 
had acted very much as if the United States were a 
vassal of France/ 

Again Pickering addressed the Senate, flatly charg- 
ing that all Embargo measures were ''in exact con* 
f ormity with the views and wishes of the French 
Emperor, . • the most ruthless tyrant that has 
scourged the European world, since the Roman Em- 
pire fell ! '* Suppose the British Navy were destroyed 
and France triumphant over Great Britain — to the 
other titles of Bonaparte would then ''be added 
that of Emperor of the Two Americas*'; for what 
legions of soldiers "could he not send to the United 
States in the thousands of British ships, were they 
also at his command?" * 

As soon as they were printed, Pickering sent 
copies of these and speeches of other Federalists to 
his dose associate, the Chief Justice of the United 
States. Marshall's prompt answer shows how far he 
had gone in company with New England Federalist 
opinion. 

"I thank you very sincerely,** he wrote "for the 
excellent speeches lately delivered in the senate. . . 
If sound argument & correct reasoning could save 
our coimtry it would be saved. Nothing can be 
more completely demonstrated than the inefficacy 
of the embargo, yet that demonstration seems to 
be of no avail. I fear most seriously that the same 
spirit which so tenaciously maintains this measure 
will impel us to a war with the only power which 
protects any part of the civilized world from the 

^ Annals, 10th Cong. 2d Sen. 108. • lb. 279-»S. 



THE PERIOD OF AMERICANIZATION 15 

despotism of that tyrant with whom we shall then 
be ravaged/' * 

Such was the change that nine years had wrought 
in the views of John Marshall. When Secretary of 
State he had arraigned Great Britain for her con- 
duct toward neutrals, denounced the impressment 
of American sailors, and branded her admiralty 
courts as habitually unjust if not corrupt.^ But his 
hatred of France had metamorphosed the man. 

Before Marshall had written this letter, the Legis- 
lature of Massachusetts formally declared that the 
continuance of the Embargo would '^ endanger . . the 
union of these States. "* Talk of secession was stead- 
ily growing in New England.^ The National Gov- 
ernment feared open rebellion.^ Only one eminent 
Federalist dissented from these views of the party 
leaders which Marshall also held as fervently as 
they. That man was the 6ne to whom he owed his 
place on the Supreme Bench. From his retirement 
in QuinQT, John Adams watched the growing ex- 
citement with amused contempt. 

"Our Gazettes and Pamphlets,'' he wrote, "tell 
us that Bonaparte • • will conquer England, and 
command all the British Navy, and send I know not 
how many hundred thousand soldiers here and con- 

1 Marshall to Pickering, Dec. 19, 1S06, Pickering MSS. Mass. 
ffiflt. Soc. 

* See vol. n, 509-14, of this work. ' Itforison: OHa, n, S-4. 

* ''The tones of Boston openly threaten insurrection." (Jefferson 
to Dearborn, Aug. 9, 1808, WorJu: Ford, xi, 40.) And see Morison: 
OHsp n, 6; Life and Correspondenee qf Ryfus King: King, v, 88; also 
see Otis to Quincy, Dec. 15, 1808, Morison: OHs, n, 115. 

* Monroe to Taylor, Jan. 9, 1809, Branch Historical Papera, June* 
1908,298* 



<^ 



16 JOHN MARSHALL 

quer from New Orleans to Passamaquoddy. Though 
every one of these Bugbears is an empty Phantom, 
yet the People seem to believe every article of this 
bombastical Creed and tremble and shudder in Con- 
sequence. Who shall touch these blind eyes?*'^ 

On January 9, 1809, Jefferson signed the "Force 
Act,'* which the Republican Congress had defiantly 
passed, and again Marshall beheld such an asser- 
tion of National power as the boldest Federalist of 
Alien and Sedition times never had suggested. Col- 
lectors of customs were authorized to seize any 
vessel or wagon if they suspected the owner of an 
intention to evade the Embargo laws; ships could be 
laden only in the presence of National officials, and 
sailing delayed or prohibited arbitrarily. Rich re- 
wards were provided for informers who should put 
the Government on the track of any violation of the 
multitude of restrictions of these statutes or of the 
Treasury regulations interpretative of them. The 
militia, the army, the navy were to be employed to 
enforce obedience.* 

Along the New England coasts popular wrath swept 
like a forest fire. Violent resolutions were passed.' 
The Collector of Boston, Benjamin Lincoln, refused 
to obey the law and resigned.* The Legislature of 

^ Adams to Rush, July 25, 1808, Old Family Letters, 101-912. 

« Annals, 10th Cong. 2d Sess. in, 1798-1804. 

' Morison: Otis, n, 10. These resolutions denounced *' ' all those 
who shall assist in ^orcmg on others the arbitrary & unconstitu- 
tional provisions of this [Force Act]' . . as 'enemies to the Constitu- 
tion of the United States and of this State, and hostile to the Liber- 
ties of the People.* '* (Boston Town Records, 1796-181S, as quoted 
in ib.; and see McMaster: History of the People of the United States, 
m, 828.) 

< McMaster, m, 829. 



THE PERIOD OF AMERICANIZATION 17 

Massachusetts passed a bill denouncing the "'Force 
Act" as unconstitutional, and declaring any oflScer 
entering a house in execution of it to be guilty of a 
high misdemeanor, punishable by fine and imprison- 
ment.^ The Governor of Connecticut declined the 
request of the Secretary of War to afford miHtary 
aid and addressed the Legislature in a speech bris- 
tling with sedition.^ The Embargo must go, said the 
Federalists, or New England would appeal to arms. 
Riots broke out in many towns. Withdrawal from 
the Union was openly advocated.' Nor was this 
sentiment confined to that section. **If the ques- 
tion were barely stirred in New England, some States 
would drop off the Union like fruit, rotten ripe,'^ 
wrote A. C. Hanson of Baltimore.* Humphrey 
Marshall of Kentucky declared that he looked to 
" Boston . . the Cradle, and Salem, the nourse, of 
American Liberty," as "the source of reformation, 
or should that be unattainable, of disimion." ^ 

Warmly as he sympathized with Federalist opinion 
d the absurd Republican retaliatory measures, and 
earnestly as he shared Federalist partisanship for 
Great Britain, John Marshall deplored all talk of 

^ McMaster, lu, 829-80; and see Morison: Otis, n, 4. 

The Federalist view was that the "Force Act" and other extreme 
portions of the £mbargo laws were " so violently and palpably un- 
constitutional, as to render a reference to the judiciary absurd "; and 
that it was "the inherent right of the people to resist measures 
fundamentally inconsistent with the principles of just liberty and the 
Social compact." (Hare to Otis, Feb. 10, 1814, Morison: Otis, n, 
175.) 

* McMaster, m, 881-82. « Morison: Otis, n, 8, 8. 

* Hanson to Pickering, Jan. 17, 1810, N,E, Federalism: Adams, 882. 

* Humphrey Marshall to Pickering, March 17, 1809, Pickering MSS. 
Mass. Hist. Soc* 



18 JOHN MARSHALL 

secession and sternly rebuked resistance to National 
> authority, as is shown in his opinion in Fletcher 
V8. Peck/ wherein he asserted the sovereignty of the 
Nation over a State. 

Another occasion, however, gave Marshall a better 
opportunity to state his views more directly, and to 
charge them with the whole force of the concurrence 
of all his associates on the Supreme Bench. This 
occasion was the resistance of the Legislature and 
Governor of Pennsylvania to a decree of Richard 
Peters, Judge of the United States Court for that 
district, rendered in the notable and dramatic case 
of Gideon Olmstead, During the Revolution, 01m- 
stead and three other American sailors captured the 
British sloop Active and sailed for Egg Harbor, New 
Jersey. Upon nearing their destination, they were 
overhauled by an armed vessel belonging to the 
State of Pennsylvania and by an American privateer. 
The Active was taken to Philadelphia and claimed as 
a prize of war. The court awarded Olmstead and his 
comrades only one fourth of the proceeds of the sale 
of the vessel, the other three fourths going to the 
State of Pennsylvania, to the oflBcers and crew of 
the State ship, and to those of the privateer. The 
Continental Prize Court reversed the decision and 
ordered the whole amount received for sloop and 
cargo to be paid to Olmstead and his associates. 

This the State court refused to do, and a litigation 
began which lasted for thirty years. The funds were 
invested in United States loan certificates, and these 
were delivered by the State Judge to the State Treas- 

^ See vol. m, chap, x, of this work. 



THE PERIOD OF AMERICANIZATION 19 

urer, David Rittenhouse, upon a bond saving the 
Judge harmless in case he, thereafter, should be com- 
pelled to pay the amount in controversy to Olmstead. 
Rittenhouse kept the securities in his personal pos- 
session, and after his death they were found among 
his effects with a note in his handwriting that they 
would become the property of Pennsylvania when 
the State released him from his bond to the Judge. 

In 1803, Olmstead secured from Judge Peters an 
order to the dauighters of Rittenhouse who, as his ex- 
ecutrixes, had possession of the securities, to deliver 
them to Olmstead and his associates. This proceed- 
ing of the National court was promptly met by an 
act of the State Legislature which declared that 
the National court had "usurped" jurisdiction, and 
directed the Governor to "protect the just rights of 
the state . . from any process whatever issued out 
of any federal court." ^ 

Peters, a good lawyer and an upright judge, but a 
timorous man, was cowed by this sharp defiance and 
did nothing. The executrixes held on to the securi- 
ties. At last, on March 5, 1808, Olmstead applied to 
the Supreme Court of the United States for a rule 
directed to Judge Peters to show cause why a man- 
damus should not issue compelling him to execute 
his decree. Peters made return that the act of the 
State Legislature had caused him "from prudential 
. . motives . . to avoid embroiling the government 
of the United States and that of Pennsylvania." * 

Thus the matter came before Marshall. On Feb- 
ruary 20, 1809, just when threats of resistance to the 

1 5 Cranch, 18S. « lb. 117. 



20 JOHN MARSHALL 

"Force Act'* were sounding loudest, when riots 
were in progress along the New England seaboard, 
and a storm of debate over the Embargo and Non- 
Intercourse laws was raging in Congress, the Chief 
Justice delivered his opinion in the case of the 
> United States vs. Peters.^ The court had, began 
Marshall, considered the return of Judge Peters 
"with great attention, and with serious concern." 
The act of the Pennsylvania Legislature challenged 
the very life of the National Government, for, " if the 
legislatures of the several states may, at will, annul 
the judgments of the courts of the United States, 
and destroy the rights acquired under those judg- 
ments, the constitution itself becomes a solemn 
mockery, and the nation is deprived of the means 
of enforcing its laws by the instnunentality of its 
own tribunals." 

These clear, strong words were addressed to Massa- 
chusetts and Connecticut no less than to Pennsyl- 
vania. They were meant for Marshall's Federalist 
comrades and friends — for Pickering, and Gore, 
and Morris, and Otis — as much as for the State 
officials in Lancaster. His opinion was not confined 
to the case before him; it was meant for the whole 
country and especially for those localities where 
National laws were being denounced and violated, 
and National authority defied and flouted. Con- 
sidering the depth and fervor of Marshall's feel- 
"^ ings on the whole policy of the Republican regime, 
his opinion in United States vs. Judge Peters was 
signally brave and noble. 

^ 5 Cranch, 185. 



THE PERIOD OF AMERICANIZATION 21 

Forcible resistance by a State to National author- 
ity ! "So fatal a result must be deprecated by all; and 
the people of Pennsylvania, not less than ike citizens of 
every other state, must feel a deep interest in resisting 
principles so destructive of the Union, and in avert- 
ing consequences so fatal to themselves." Marshall 
then states the facts of the controversy and con- 
cludes that " the state of Pennsylvania can possess no 
constitutional right" to resist the authority of the 
National courts. His decision, he says, "is not made 
without extreme regret at the necessity which has in- 
duced the application/' But, because " it is a solenm 
duty" to do so, the "mandamus must be awarded."^ 

Marshall's opinion deeply angered the Legislature 
and officials of Pennsylvania.^ When Judge Peters, in 
obedience to the order of the Supreme Court, directed 
the United States Marshal to enforce the decree in 
Olmstead's favor, that official found the militia under 
command of General Bright drawn up around the 
house of the two executrixes. The dispute was at 
last composed, largely because President Madison re- 
buked Pennsylvania and upheld the National courts.' 

^ 5 Cranch, 1S6, 141. (Italics the author's.) 

* The Legislature of Pennsylvania adopted a resolution, April S, 
1809, proposing an amendment to the National Constitution for the 
establishment of an "impartial tribunal" to decide upon contro- 
versies between States and the Nation. (State Documents on Federal 
Relations: Ames, 46-48.) In reply Virginia insisted that the Supreme 
Court, *' selected from those • . who are most celebrated for virtue and 
legal learning," was the proper tribunal to decide such cases. (76. 
49-dO.) This Nationalist position Virginia reversed within a decade in 
protest against Marshall's Nationalist opinions. Virginia's Nation- 
alist resolution of 1809 was read by Pinkney in his argument of Cohens 
99. Virginia. (See injray chap, vi.) 

* See Madison to Snyder, April 18, 1809, Annals, 11th Cong. 12d 
Seas. 2269; also McMaster, v, 408-06. 



22 JOHN MARSHALL 

A week after the delivery of Marshall's opinion, 
the most oppressive provisions of the Embargo Acts 
were repealed and a curious non-intercourse law 
enacted.^ One section directed the suspension of 
all commercial restrictions against France or Great 
Britain in case either belligerent revoked its orders 
or decrees against the United States; and this the 
President was to announce by proclamation. The 
new British Minister, David M. Erskine, now ten- 
dered apology and reparation for the attack on the 
Chesapeake and positively assured the Administra- 
tion that, if the United States would renew inter- 
course with Great Britain, the British Orders in 
Council would be withdrawn on June 10, 1809. Im- 
mediately President Madison issued his proclama- 
tion stating this fact and announcing that after that 
happy June day, Americans might renew their long 
and ruinously suspended trade with all the world not 
subject to French control.* 

The Federalists were jubilant.' But their joy was 
quickly turned to wrath — against the Administra- 
tion. Great Britain repudiated the agreement of her 
Minister, recalled him, and sent another charged 
with rigid and impossible instructions.^ In deep 
humiliation, Madison issued a second proclamation 
reciting the facts and restoring to full operation 
against Great Britain all the restrictive commer- 
cial and maritime laws remaining on the statute 

1 Annals, 10th Cong. 9d Sess. 1824-30. 

> Erskine to Smith, April 18 and 19» 1809, Am, StaU Papers, For. 
RA. m, 296. 

' Adams: U.8. v, 78-74; see also McBIaster, m, 837. 
. * Adams: V.S. v, 87-89, 112. 



THE PERIOD OF AMERICANIZATION 23 

books. ^ At a banquet in Richmond, JeflFerson pro- 
posed a toast: "The freedom of the seas!'* * 

Upon the arrivid of Francis James Jackson, Er- 
skine's successor as British Minister, the scenes of the 
Gen^t drama' w^re repeated. Jackson was arrogant 
and overbearing, and his instructions were as harsh as 
his disposition.^ Soon the Administration was forced 
to refuse further conference with him. Jackson then 
issued an appeal to the American people in the form 
of a circular to British Consuls in America, accusing 
the American Government of trickery, concealment 
of facts, and all but downright falsehood.^ A letter 
of Canning to the American Minister at London^ 
found its way into the Federalist newspapers, " doubt- 
less by the connivance of the British Minister," says 
Joseph Story. This letter was, Story thought, an 
"infamous'' appeal to the American people to re- 
pudiate their own Government, "the old game of 
Gen6t played over again." ^ 

1 Proclamation of Aug. 0, 1809, Am, State Papers, For. Ret. m, 804. 
' Tyler: Letlere and Times oS the Tylers, i, 229. For an expression 
by Napoleon on this subject, see Adams: U.S. v» 187. 
' See vol. n, 28-29, of this work. 

* **The appointment of Jackson and the instructions given to him 
might well have justified a declaration of war against Great Britain 
the moment they were known." (Channing: Jeff* System, 287.) 

» Circular, Nov. 18, 1809, Am. State Papers, Far. Rel. ra, 328; 
Annals, 11th Cong. 2d Sess. 748. 

• Canning to Pinkney, Sept. 28, 1808, Am. State Papers, For. Rel. 
ra, 280-81. 

^ Story to White, Jan. 17, 1809, Life and Letters of Joseph Story: 
Story, 1, 198-94. There were two letters from Canning to Pmkney, 
both dated Sept. 28, 1808. Story probably refers to one printed in 
the Columbian CenHnd, Boston, Jan. 11, 1809. 

"It seems as if in New England the federalists were forgetful of all 
the motives for union & were ready to destroy the fabric which has been 
raised by the wisdom of our fathers. Have they altogether lost the 



24 JOHN MARSHALL 

Furious altercations arose all over the coimtry. 
The Federalists defended Jackson. When the elec- 
tions came on, the Republicans made tremendous 
gains in New England as well as in other States,^ 
a circumstance that depressed Marshall profoimdly. 
Li December an acrimonious debate arose in Con- 
gress over a resolution denoimcing Jackson's circular 
letter as a '^direct and aggravated insult and affront 
to the American people and their Government." * 
Every Federalist opposed the resolution. Josiah 
Quincy of Massachusetts declared that every word 
of it was a '"falsehood," and that the adoption of 
it would call forth "severe retribution, perhaps in 
war" from Great Britain.' 

Disheartened, disgusted, wrathful, Marshall wrote 
Quincy: "The Federalists of the South participate 
with their brethren of the North in the gloomy an- 
ticipations which your late elections must inspire. 
The proceedings of the House of Representatives iJ- 
ready demonstrate the influence of those elections on 
the affairs of the Union. I had supposed that the late 
letter to Mr. Armstrong,* and the late seizure [by 

memoiy of Washington's farewell address? • . The riotous proceed* 
ings in some towns . . no doubt . • are occasioned by the instigation 
of men, who keep behind the curtain & yet govern the wires of the 
puppet shew/' (Story to his brother, Jan. S, 1809, Story MSS. Mass. 
Hist. Soc.) 

''In New England, and even in New York, there appears a spirit 
hostile to the existence of our own government." (Plumer to Gilman, 
Jan. 24, 1809, Plumer : Life of William Plumer, 368.) 

» Adams: 17.5. v, 158. 
. > Armale, 11th Cong. 12d Sess. 481. 

* lb, 943. The resolution was passed over the strenuous resistance 
of the Federalists. 

^ Probably that of Madison, July 91, 1808, AmoLe, 10th Cong. 
2d Sess. 1681. 



THE PERIOD OF AMERICANIZATION 26 

the French] of an American vessel, simply because 
she was an American, added to previous burnings, 
ransoms, and confiscations, would have exhausted 
to the dregs our cup of servility and degradation; 
but these measiu-es appear to make no impression 
on those to whom the United States confide their 
destinies. To what point are we verging? '* ^ 

Nor did the Chief Justice keep quiet in Richmond. 
"We have lost our resentment for the severest in- 
juries a nation ever suffered, because of their being 
so often repeated. Nay, Judge Marshall and Mr. 
Pickering & Co. found out Great Britain had given 
us no cause of complaint, '* * writes John Tyler. And 
ever nearer drew the inevitable conflict. 

Jackson was unabashed by the condemnation of 
Congress, and not without reason. Wherever he 
went, more invitations to dine than he could accept 
poiu^ in upon him from the "best families"; ban- 
quets were given in his honor; the Senate of Massa- 
chusetts adopted resolutions condemning the Admin- 
istration and upholding Jackson, who declared that 
the State had "done more towards justifying me to 
the world than it was possible . . that I or any other 
person could do." • The talk of secession grew.* At 

^ Marshall to Quiney* Aprfl 28» 1810» Quincy : Uje 0/ Joaiah Quincy, 
204. 

« Tyler to JeflPeraon, May 12, 1810, Tyler: Tyler, i, 247; and see 
next chapter. 

' Adams: U£, v, 212-14; and see Morison: OHs, n, lS-10. 

^ Turreau, then the French Minister at Washington, thus reported 
to his Government: *'To-day not only is the separation of New 
England openly talked about, but the people of those five States wish 
for this separation, pronounce it, openly prepare it, will carry it out 
under British protection ** ; and he suggests that " perhaps the moment 
has come for forming a party in favor of France in the Central and 



26 JOHN MARSHALL 

a public banquet given Jackson, Pickering proposed 
the toast: "The world's last hope — Britain's fast- 
anchored isle!'* It was greeted with a storm of 
cheers. Pickering's words sped over the coimtry and 
became the political war cry of Federalism.^ Mar- 
shall, who in Richmond was following "with anx- 
iety" all political news, undoubtedly read it, and 
his letters show that Pickering's words stated the 
opinion of the Chief Justice.* 

Upon the assurance of the French Foreign Minis- 
ter that the Berlin and Milan Decrees would be re- 
voked after November 1, 1810, President Madison, 
on November 2, announced what he believed to be 
Napoleon's settled determination, and recommended 
the resumption of commercial relations with France 
and the suspension of all intercourse with Great 
Britain unless that Power also withdrew its injurious 
and offensive Orders in Council.' 

When at Washington, Marshall was frequently in 

Southern States, whenever those of the North, having given them- 
selves a separate government mider the support of Great Britain, may 
threaten the independence of the rest." (Turreau to Champagny, 
April 20, 1809, as quoted in Adams: U,8. v, S6.) 

^ For account of Jackson's reception in Boston and the effects 'of it, 
see Adams : U.S. 215-17, and Morison : Otis, 20-22. 

^ On the other hand, Jefferson, out of his bottomless prejudice 
against Great Britain, drew venomous abuse of the whole British 
nation : ** What is to restore order and safety on the ocean? ** he wrote; 
*'the death of George m? Not at alL He is only stupid; . . his min- 
isters . . ephemeral. But his nation is permanent, and it is that which 
is the tyrant of the ocean. The principle that force is right, is be- 
come the principle of the nation itself. They would not permit an 
honest minister, were accident to bring such an one into power, to 
relax their system of lawless piracy.*' (Jefferson to Rodney, Feb. 10, 
1810, Works: Ford, xi, 1S5-S6.) 

> Champagny, Duke de Cadore, to Armstrong, Aug. 5, 1810 (Am, 
State Papers, For. Rel. m, 886-87), and Proclamation, Nov. 2, 1810 
(i&. 892); and see Adams: U.8. v, 808-04. 



THE PERIOD OF AMERICANIZATION 27 

Pickering's company, \ Before the Chief Justice left 
for Richmond, the Massachusetts Senator had lent 
him pamphlets containing part of John Adams's 
" Cmmingham Correspondence/* In returning them, 
Marshall wrote that he had read Adams's letters 
"with regret." But the European war, rather than 
the "Cunningham Correspondence," was on the 
mind of the Chief Justice: "We are looking with 
anxiety towards the metropolis for political intelli- 
gence. Report gives much importance to the com- 
munications of Serrurier [the new French Minister],^ 
& proclaims him to be charged with requisitions on 
our government, a submission to which would seem 
to be impossible. \ . I will flatter myself that I have 
not seen you for the last time. Events have so fully 
demonstrated the correctness of your opinions on 
subjects the most interesting to our country that I 
cannot permit myself to believe the succeeding legis- 
lature of Massachusetts will deprive the nation of 
your future services." ^ 

As the Federalist faith in Great Britain grew 
stronger. Federalist distrust of the youthful and 
growing American people increased. Early in 1811, 
the bill to admit Louisiana was considered. The 
Federalists violently resisted it. Josiah Quincy de- 
clared that "if this bill passes, the bonds of this 
Union are virtually dissolved; that the States which 
compose it are free from their moral obligations, and 
that, as it wiU be the right of all, so it will be the 
duty of some, to prepare definitely for a separation 

^ Adams: U.8. v, 846. 

< MarshaU to Pickering, Feb. 9St, 1811, Pickering MSS. Mass. 
HistSoc 



< 



28 JOHN MARSHALL 

— amicably if they can, violently if they must."^ 
Quincy was the embodiment of the soul of Local- 
ism: "The first public love of my heart is the Com- 
monwealth of Massachusetts. There is my fireside; 
there are the tombs of my ancestors/* * 

The spirit of American Nationalism no longer 
dwelt in the breasts of even the youngest of the 
Federalist leaders. Its abode now was the hearts of 
the people of the West and South; and its strongest 
> exponent was a young Kentuckian, Henry Clay, 
whose feelings and words were those of the heroic 
seventies. Although but thirty-three years old, he 
had been appointed for the second time to fill an 
unexpired term in the National Senate. On Febru- 
ary 22, 1810, he addressed that body on the coun- 
try's wrongs and duty: "Have we not been for years 
contending against the tyranny of the ocean? " We 
have tried *^ peaceful resistance. . . When this is aban- 
doned without eflFect, I am for resistance by the 
sword.'^ ^ Two years later, in the House, to which he 
was elected inmiediately after his term in the Senate 
expired, and of which he was promptly chosen 
Speaker, Clay again made an appeal to American 
patriotism : "The real cause of British aggression was 
not to distress an enemy, but to destroy a rival!" * 

^ Anruds, 11th Cong. 8d Sess. 6^, 

Daniel Webster was also emphatically opposed to the admission 
of new States: *'Put in a solemn, decided, and spirited Protest 
against making new States out of new Territories. Affirm, in direct 
terms, that New Hampshire has never agreed to favor political con- 
nexions of such intimate nature, with any people, out of the limits 
of the U.S. as they existed at the time of the compact.'* (Webster to 
his brother, Juue 4, 1813, Letters qf Daniel Webster: Van Tyne, 87.) 

* Annds, 11th Cong. Sd Sess. 542. ' lb. 1st and dd Sess. 579-82. 

^ Annals, 12th Cong. 1st Sess. 601; alsosee Adams: 17.^. v» 189-90. 



THE PERIOD OF AMERICANIZATION 29 

he passionately exclaimed. Another Patrick Henry 
had arisen to lead America to a new independence. 

Four other young Representatives from the West 
and South, John C. Calhoun, William Lowndes, 
Langdon Cheves, and Felix Grundy were as hot for 
war as was Henry Clay.^ 

Clay's speeches, extravagant, imprudent, and gran- 
diose, had at least one merit: they were thoroughly 
American and expressed the opinion of the first ^ 
generation of Americans that had grown up since 
the colonies won their freedom. Henry Clay spoke 
their language. But it was not the language of the 
John Marshall of 1812. 

Eventually the Administration was forced to act. 
On June 1, 1812, President Madison sent to Con- 
gress his Message which briefly, and with modera- 
tion, stated the situation.^ On June 4, the House 
passed a bill declaring war on Great Britain. Every 
Federalist but three voted against it.' The Senate 

^ Adams: UJS. v, 816. 

* Richardson, i, 499-505; Am, State Papers, Far. Rd, m, 567-70. 

* Annals, 12th Cong. Ist Seas. 1637. The Federalists who voted 
for war were: Joseph Kent of Maryland, James Morgan of New 
Jersey, and William M. Richardson of Massachusetts. 

Professor Channing thus states the American grievances: '* In- 
citing the Indians to rebellion, impressing American seamen and mak- 
ing them serve on British war-ships, closing the ports of £urope to 
American commerce, these were the coimts in the indictment against 
the people and government of Great Britain." (Channing: Jeff. 
SyeUm, 5^60.) See also i&. 1^68, and Jefferson's brilliant statement 
of the causes of the war» Jefferson to Logan, Oct. 3, 1813, Works: 
Ford, 3a, 338-39. 

"The United States," says Henry Adams, "had a superfluity of 
<mly too good causes for war with Great Britain." (Adams: lASe 
cf Albert Gallatin, 4i5.) Adams emphasizes this: "The United States 
had the right to make war on England with or without notice, either 
for her past spoliations, her actual blockades, her Orders in Council 
other than blockades, her Rule of 1756, her impressments, or her 



30 JOHN MABSHALL 

made unimportant amendments which the House 
accepted; ^ and thus, on June 18, war was formally 
declared. 

At the Fourth of July banquet of the Boston Fed- 
eralists, among the toasts, by drinking to which the 
company exhilarated themselves, was this sentiment: 
" The Existing War — The Child of Prostitution, may 
no American acknowledge it legitimate." * Joseph 
Story was profoundly alarmed: "I am thoroughly 
convinced,'* he wrote, "that the leading Federalists 
meditate a severance of the Union." ' His appre- 
hension was justified: "Let the Union be severed. 
Such a severance presents no terrors to me," wrote 
the leading Federalist of New England.^ 

While opposition to the war thus began to blaze 
into open and defiant treason in that section,^ the 

attack on the 'Chesapeake/ not yet redressed, — possibly also for 
other reasons less notorious.'* (Aduns: U,8. v, 850.) And see Roose- 
velt, chaps. I and n. 

1 Annals, 12th Cong. 1st Sess. 1675-82. 

' Salem Gazette, July 7, 1812, as quoted in Morison: Otis, i, 298. 

• Story to Williams, Aug. 24, 1812, Story, i, 229. 

^ Pickering to Pennington, July 12, 1812, N.E. Federalism: Adams, 

9oV. 

' Of course the National courts were attacked: "Attempts . . are 
made . . to break down the Judiciary of the United States through 
the newspapers, and mean and miserable insinuations are made to 
weaken liie authority of its judgments.*' (Story to Williams, Aug. 3, 
1813, Story, i, 247.) And again: "Conspirators, and traitors are 
enabled to carry on their purposes almost without check.'* (Same to 
same. May 27, 1813, ib, 244.) Story was lamenting that the National 
courts had no common-law jurisdiction. Some months earlier he 
had implored Nathaniel Williams, Representative in Congress from 
Story's district, to "induce Congress to give the Judicial Courts of 
the United States power to punish all crimes . . against the Grovem* 
ment. . . Do not suffer conspiracies to destroy the Union.'* (Same 
to same, Oct. 8, 1812, ib. 243.) * 

Jefferson thought the people were loyal: "When the questions of 
separation and rebellion shall be nakedly proposed . . the Gores and 



THE PERIOD OF AMERICANIZATION 31 

old-time Southern Federalists, who detested it no 
less, sought a more practical, though more timid, way 
to resist and end it. " Success in this War, would most 
probably be the worst kind of ruin, '* wrote Benja- 
min Stoddert to the sympathetic James McHenry, 
"There is but one way to save our Coimtry . . change 
the administration — . . this can be aflfected by 
bringing forward another Virgn. as the competitor of 
Madison/' For none but a Virginian can get the 
Presidential electors of that State, said Stoddert, 

" There is, then, but one man to be thought of as 
the candidate of the Federalists and of aU who were 
against the war. That man is John Marshall." Stod- 
dert informs McHenry that he has written an arti- 
cle for a Maryland Federalist paper, the Spirit of 
Seventy-Six^ recommending Marshall for President. 
"This I have done, because . . every body else . . 
seems to be seized with apathy . . and because I felt 
it sacred duty.'* ^ 

Sloddert's newspaper appeal for Marshall's nomi- 
nation was dear, persuasive, and well reasoned. It 
opened with the familiar Federalist arguments 
against the war. It was an *^ offensive war," which 
meant the ruin of America. "Thus thinking . . I feel 
it a solemn duty to my coimtrymen, to name John 
Mabshall, as aman as highly gifted as any other in 
the United States, for the important oflSce of Chief 
Magistrate; and more likely than any other to com- 

the Pickerings will find their levees crowded with silk stocking gentry, 
but no yeomanry." (Jefferson to Geny, June 11» ISIIS, Works : Ford, 
XI, 257.) 

* Stoddert to McHenry, July 15, 1S12, Steiner: Life and Cone- 
ipondmce of James McHenry^ 581-83. 



89 JOHN MARSHALL 

mand the confidence, and unite the votes of that 
description of men, of all parties, who desire nothing 
from government, but that it should be wisely and 
faithfully administered. . . 

"The sterling integrity of this gentleman's char- 
acter and his high elevation of mind, forbid the sus- 
picion, that he could descend to be a mere party 
President, or less than the President of the whole 
people: — but one objection can be urged against 
him by candid and honorable men: He is a Virgin- 
ian, and Virginia has already furnished more than 
her full share of Presidents — This objection in less 
critical times would be entitled to great weight; but 
situated as the world is, and as we are, the only con- 
sideration now should be, who amongst our ablest 
statesmen, can best unite the sufifrages of the citizens 
of all parties, in a competition with Mr. Madison, 
whose continuance in power is incompatible with 
the safety of the nation? . . 

"It may happen,'* continues Stoddert, "that this 
our beloved coimtry may be ruined for want of the 
services of the great and good man I have been 
prompted by sacred duty to introduce, from the 
mere want of energy among those of his inunediate 
countrymen [Virginians], who think of his virtues 
and talents as I do; and as I do of the crisis which 
demands their employment. 

" If in his native state men of this description will 
act in concert, & with a vigor called for by the oc- 
casion, and will let the people fairly know, that the 
contest is between John Marshall, peace, and a new 
order of things; and James Madison, Albert Gallatin 



THE PERIOD OP AMERICANIZATION SS 

and war, with war taxes, war loans, and all the other 
dreadful evils of a war in the present state of the 
world, my life for it they will succeed, and by a consid- 
erable majority of the independent votes of Virginia/' 

Stoddert becomes so enthusiastic that he thinks 
victory possible without the assistance of Marshall's 
own State: "Even if they fail in Virginia, the very 
effort will produce an animation in North Carolina, 
the middle and Eastern states, that will most prob- 
ably secure the election of John Marshall. At the 
worst nothing can be lost but a little labour in a good 
cause, and everything may be saved, or gained for 
our country." Stoddert signs his plea "A Maryland 
Farmer." * 

In his letter to McHenry he says: "they vote for 
electors in Virga. by a general ticket, and I am 
thoroughly persuaded that if the men in that State, 
who prefer Marshall to Madison, can be animated 
into Exertion, he will get the votes of that State. 
What little I can do by private letters to afiFect this 
will be done." Stoddert had enlisted one John Davis, 
an Englishman — writer, traveler, and generally 
a rolling stone — in the scheme to nominate Mar- 
shall. Davis, it seems, went to Virginia on this mis- 
sion. After investigating conditions in that State, 
he had informed Stoddert " that if the Virgns. have 
nerve to believe it will be agreeable to the Northern 
& E. States, he is sure Marshall will get the Virga. 
votes." * 

^ ''To the Citizens of the United States," in the Spirit of Seventy^ 
Six, July 17, 181«. 

* Stoddert refers to this person as "Jo Davies.*' By some this has 
been thought to refer to Marshall's brother-in-law, "Jo" Daveiss of 



34 JOHN MARSHALL 

Stoddert dwells with the affection and anxiety of 
parentage upon his idea of Marshall for President: 
"It is not because I prefer Marshall to several othar 
men, that I speak of him — but because I am well 
convinced it is vain to talk of any other man, and 
Marshall is a Man in whom Fedts. may confide — 
Perhaps indeed he is the man for the crisis, which de- 
mands great good sense, a great firmness under the 
garb of great moderation." He then urges McHenry 
to get to work for Marshall — "support a cause 
[election of a peace President] on which all that is 
dear to you depends/' ^ Stoddert also wrote two 
letters to William Coleman of New York, editor ai 
the New YorklEvening Post, urging Marshall for the 
Presidency.* 

Twelve days after Stoddert thus instructed Mc- 
Henry, Marshall wrote strangely to Robert Smith 
of Maryland. President Madison had dismissed 
Smith from the oflSice of Secretary of State for inef- 
ficiency in the conduct of our foreign affairs and for 
intriguing with his brother. Senator Samuel Smith, 
and others against the Administration's foreign 

Kentucky. But the latter was killed in the Battle of Tippecanoe* 
November 7, 1811. 

While the identity of Stoddert's agent cannot be established with 
certainty, he probably was one John Davis of Salisbury, En^and* 
as described in the text. **3o** was then used for John as much as 
for Joseph; and Davis was frequently spelled "Davies/' A John or 
*'Jo" Davis or Davies, an Englishman, was a very busy person in 
America during the first decade of the nineteenUi century. (See 
Loshe: Early American Novell 74-77.) Naturally he would have 
been against the War of 1812, and he was just the sort of person that 
an impracticable man like Stoddert would have chosen for such a 
mission. 

1 Stoddert to McHenry, July 15, 1815^ Steiner, 582. 

* See King, v, 266. 



THE PERIOD OF AMERICANIZATION 85 

policy,* Upon his ejection from the Cabinet, Smith 
proceeded to ** vindicate'* himself by publishing a 
dull and pompous "'Address'" in which he asserted 
that we must have a President "of energetic mind, 
of enlarged and liberal views, of temperate and dig- 
nified deportment, of honourable and manly feel- 
ings, and as efficient in maintaining, as sagacious 
in discerning the rights of our much-injured and in- 
sulted coimtry."^ This was a good summary of 
Marshall's qualifications. 

When Stoddert proposed Marshall for the Presi- 
dency, Smith wrote the Chief Justice, enclosing a 
copy of his attack on the Administration. On July 
27, 1812, more than five weeks after the United States 
had declared war, Marshall replied: '^ Although I 
have for several years forbom to intermingle with 
those questions which agitate & excite the feelings of 
party, it is impossible that I could be inattentive to 
passing events, or an unconcerned observer of them." 
But "as they have increased in their importance, the 
interest, which as an American I must take in them, 
has also increased; and the declaration of war has 
appeared to me, as it has to you, to be one of those 
portentous acts which ought to concentrate on it- 
self the efforts of all those who can take an active 
part m rescuing their country from the ruin it 
threatens. 

"All minor considerations should be waived; the 
Knes of subdivision between parties, if not abso- 
lutely effaced, shoidd at least be convened for a time; 

» Adams: U.8. v. 875-78. 

s Smith: An Addreu to the People qfthe United SUxtes, 41^-48. . 



86 JOHN MARSHALL 

and the great division between the friends of peace 
& the advocates of war ought alone to remain. It is 
an object of such magnitude as to give to ahnost 
every other, comparative insignificance; and all who 
wish peace ought to unite in the means which may 
facilitate its attainment, whatever may have been 
their differences of opinion on other points/' * 

Marshall proceeds to analyze the causes of hostil- 
ities. These, he contends, were Madison's subserv- 
iency to France and the base duplicity of Napoleon. 
The British Government and American Federalists 
had, from the first, asserted that the Emperor's 
revocation of the Berlin and Milan Decrees was a 
mere trick to entrap that credulous French parti- 
san, Madison; and this they maintained with ever- 
increasing evidence to support them. For, in spite 
of Napoleon's friendly words, American ships were 
still seized by the French as well as by the British. 

In response to the demand of Joel Barlow, the new 
American Minister to France, for a forthright state- 
ment as to whether the obnoxious decrees against 
neutral commerce had or had not been revoked as 
to the United States, the French Foreign Minister 
delivered to Barlow a new decree. This dociunent, 
called " The Decree of St. Cloud," declared that the 
former edicts of Napoleon, of which the American 
Government complained, "are definitively, and to 
date from the 1st day of November last [1810], consid- 
ered as not having existed [non (weniLs] in regard to 
American vessels." The " decree " was dated April 28, 

^ Marshall to Smith, July 97, 1812, Drew MSS. "American Law- 
yers," Pa. BQst. Soc. 



THE PEBIOD OF AMERICANIZATION 37 

1811, yet it was handed to Barlow on May 10, 1812. 
It expressly stated, moreover, that Napoleon issued 
it because the American Congress had, by the Act 
of May 2, 1811, prohibited "the vessels and mer- 
chandise of Great Britain • . from entering into the 
ports of the United States/* ^ 

General John Armstrong, the American Minister 
who preceded Barlow, never had heard of this decree; 
it had not been transmitted to the French Minister 
at Washington; it had not been made public in any 
way. It was a ruse, declared the Federalists when 
news of it reached America — a cheap and tawdry 
trick to save Madison's face, a palpable falsehood, a 
clumsy afterthought. So also asserted Robert Smith, 
and so he wrote to the Chief Justice. 

Marshall agreed with the fallen Baltimore politi- 
cian. Continuing his letter to Smith, the longest and 
most unreserved he ever wrote, except to Washing- 
ton and to Lee when on the French Mission,* the 
Chief Justice said: "The view you take of the edict 
purporting to bear date of the 28*? of April 1811 
appears to me to be perfectly correct. . . I am aston- 
ishedy if in these times any thing ought to astonish, 
that the same impression is not made on all.'* Mar- 
shall puts many questions based on dates, for the 
purpose of exposing the fraudulent nature of the 
French decree and continues: 

" Had France felt for the United States any portion 
of that respect to which our real importance entitles 
us, would she have failed to give this proof of it? But 

^ Am. State Papers, Far. Rd. m, 60S ; and see Channing : U.S. iv, 449. 
* See vol n, 248-44, 245-47, (^ this work. 



88 JOHN MARSHALL 

regardless of the assertion made by the President in 
his Proclamation of the 24 of Nov^ 1810, regardless 
of the commuiications made by the Executive to the 
Legislatiu*e, regardless of the acts of Congress, and 
regardless of the propositions which we have in- 
variably maintained in our diplomatic intercourse 
with Great Britain, the Emperor has given a date to 
his decree, & has assigned a motive for its enactment, 
which in express terms contradict every assertion 
made by the American nation throughout all the 
departments of its government, & remove the founda- 
tion on which its whole system has been erected. 

"The motive for this offensive & contemptuous 
proceeding cannot be to rescue himself from the im- 
putation of continuing to enforce his decrees after 
their formal repeal because this imputation is pre- 
cisely as applicable to a repeal dated the 28*^ of 
April 1811 as to one dated the 1** of November 1810, 
since the execution of those decrees has continued 
after the one date as well as after the other. Why 
then is this obvious fabrication such as we find it? 
Why has M^ Barlow been unable to obtain a paper 
which might consult the honor & spare the feelings 
of his government? The answer is not to be dis- 
guised. Bonaparte does not sufficiently respect us 
to exhibit for our sake, to France, to America, to 
Britain, or to the world, any evidence of his having 
receded one step from the position he had taken. 

" He could not be prevailed on, even after we had 
done all he required, to soften any one of his acts so 
far as to give it the appearanee of his having ad- 
vanced one step to meet us. That this step, or rather 



THE PERIOD OP AMERICANIZATION 89 

the api>earance of having taken it, might save our 
reputation was regarded as dust in the balance. 
Even now, after our solemn & repeated assertions 
that our discrimination between the belligerents is 
foimded altogether on a first advance of France — on 
a decisive & unequivocal repeal of all her obnoxious 
decrees; after we have engaged in a war of the most 
calamitous character, avowedly, because France had 
repealed those decrees, the Emperor scorns to coun- 
tenance the assertion or to leave it uncontradicted. 

"He avers to ourselves, to our selected enemy, & 
to the world, that, whatever pretexts we may assign 
for our conduct, he has in fact ceded nothing, he has 
made no advance, he stands on his original ground & 
we have marched up to it. We have submitted, com- 
pletely submitted; & he will not leave us the poor 
consolation of concealing that submission from our- 
selves. But not even our submission has obtained 
relief. His cruizers still continue to capture, sink, 
bum & destroy. 

**I cannot contemplate this subject without ex- 
cessive mortification as well at the contempt with 
which we are treated as at the infatuation of my 
countrymen. It is not however for me to indulge 
these feelings though I cannot so entirely suppress 
them as not sometimes though rarely to allow them 
a place in a private letter." Marshall assures Smith 
that he has "read with attention and approbation" 
the paper sent him and will see to its "republication." ^ 

^ Mardiall to Smitli, July 27, 1812, Dreer MSS. " American Law- 
y»8," Pa. Hist Soc. 

A single quotation from the letters of Southern Federalists will 
show how accurately Marshall interpreted Fedjeralist feeling during 



40 JOHN MARSHALL 

From reading Marshall's letter without a knowl- 
edge of the facts, one could not possibly infer that 
America ever had been wronged by the Power with 
which we were then at war. All the strength of his 
logical and analytical mind is brought to bear upon 
the date and motives of Napoleon's last decree. 
He wrote in the tone and style, and with the contro- 
versial ability of his state papers, when at the head 
of the Adams Cabinet. But had the British Foreign 
Secretary guided his pen, his indictment of France 
and America could not have been more imsparing. 
His letter to Smith was a call to peace advocates 
and British partisans to combine to end the war by 
overthrowing the Administration. 

This imfortunate letter was written during the 
long period between the adjournment of the Supreme 
Court in March, 1812, and its next session in Feb- 
ruary of the following year. Marshall's sentiments 
are in sharp contrast with those of Joseph Story, 
whose letters, written from his Massachusetts home, 
strongly condemn those who were openly opposing 
the war. "The present," he writes, "was the last 
occasion which patriotism ought to have sought to 
create divisions." * 

Apparently the Administration did not know of 
Marshall's real feelings. Lnmediately after the dec- 
laration of war, Monroe, who succeeded Smith as 
Secretary of State, had sent his old personal friend, 

the War of 1812: ^'Heaven grant that . . our own Country may not 
be found ultimately, a solitary friend of this great Bobber of Nations." 
(Tallmadge to McHenry, May SO, 1818, Steiner, 598.) The war had 
been in progress more than ten months when these words were Written. 
^ Story to Williams, Oct 8, 18112, Story, i, 248. 



THE PERIOD OF AMERICANIZATION 41 

the Chief Justice, some documents relating to the war. 
If Marshall had been uninformed as to the causes 
that drove the United States to take militant action, 
these papers supplied that information. In acknowl- 
edging receipt of them, he wrote Monroe: 

"On my return to day from my farm where I 
pass a considerable portion of my time in laborious 
relaxation, I found a copy of the message of the 
President of the 1** inst accompanied by the re- 
port of the Committee of foreign relations & the 
declaration of war against Great Britain, under 
cover from you. 

"Permit me to subjoin to my thanks for this mark 
of your attention my fervent wish that this momen- 
tons measure may, in its operation on the interest 
& honor of our coimtry, disappoint only its enemies. 
Whether my prayer be heard or not I shall remain 
with respectful esteem,'* etc.^ 

Cold as this letter was, and capable as it was of 
double interpretation, to the men sorely pressed 
by the inunediate exigencies of combat, it gave no 
inkling that the Chief Justice of the United States 
was at that very moment not only in close sympathy 
with the peace party, but was actually encouraging 
that party in its eflForts to end the war.* 

Just at this time, Marshall must have longed for 
seclusion, and, by a lucky chance, it was afiForded 
him. One of the earliest and most beneficial efiFects 
of the Non-Importation, Embargo, and Non-Inter- 

^ Marshall to Monroe, June 125» 1812, Monroe MSS. Lib. Cong. 

* Marshall, however, was a member of the "Vigilance Committee*' 
of Richmond, and took an important part in its activities. (Fir- 
gwia Magazine qf History and Biography, vn, 230-31.) 



42 JOHN MARSHALL 

course laws that preceded the war, was the heavily 
increased migration from the seaboard States to the 
territories beyond the Alleghanies. The dramatic 
story of Burr's adventures and designs had reached 
every ear and had turned toward the Western coun- 
try the eyes of the poor, the adventurous, the as- 
piring; already thousands of settlers were taking up 
the new lands over the mountains. Thus came a 
practical consideration of improved means of travel 
and transportation. Fresh interest in the use of 
waterways was given by Fulton's invention, which 
seized upon the imagination of men. The possibil^ 
ities of steam navigation were in the mmds of all who 
observed the expansion of the coimtry and the 
growth of domestic commerce. 

Before the outbreak of war, the Legislature of Vir- 
ginia passed an act appointing conmiissioners ''for 
the purpose of viewing certain rivers withm this 
Commonwealth, " ^ and Marshall was made the head 
of this body of investigators. Nothing could have 
pleased him more. It was practical work on a matter 
that interested him profoundly, and the renewal of 
a subject which he had entertained since his young 
manhood.' 

This tour of observation promised to be full of va- 

^ Report cf the Commissioners appointed to view Certain Rivers wiihin 
the CommonwedUh of Virginia, 5. 

* A practicable route for travel and transportation between Vir- 
ginia and the regions across the mountains had been a favorite 
project of Washington. The Potomac and James River Company, 
of which Marshall when a young lawyer had become a stockholder 
(vol. I, 218, of this work), was organized partly in furtherance of this 
project. The idea had remained active in the minds of public men in 
Virginia and was, perhaps, the one subject upon which they substan- 
tially agreed. 



THE PERIOD OF AMEBICANIZATION 4S 

riety and adventure, tinged with danger, into forests, 
over moimtains, and along streams and rivers not 
yet thoroughly explored. For a short time Marshall 
would again live over the days of his boyhood. 
Most inviting of all, he would get far away from 
talk or thought of the detested war. Whether the 
Presidential scheming in his behalf bore fruit or 
withered, his absence in the wilderness was an ideal 
preparation to meet either outcome. 

In his fifty-seventh year Marshall set out at the 
head of the expedition, and a thorough piece of work 
he did. With chain and spirit level the route was 
carefully surveyed from Lynchburg to the Ohio. 
Sometimes progress was made slowly and with the 
utmost labor. In places the scenes were " awful and 
discouraging.'' 

The elaborate report which the commission sub- 
mitted to the Legislature was written by Marshall. 
It reads, says the surveyor of this division of the 
Chesapeake and Ohio Railway,^ '^as an account of 
that survey of 1869, when I pulled a chain down the 
rugged banks of New River." Practicable sections 
were accurately pointed out and the methods by 
which they could best be utilized were recommended 
with particular care. 

Marshall's report is alive with far-seeing and 
statesmanlike suggestions. He thinks, in 1812, that 
steamboats can be run successfully on the New River, 
but fears that the expense will be too great. The 

^ Much of the coarse selected by Marshall was adopted in the 
building of the Chesapeake and Ohio Railway. In 1869, Collis P. 
Huntington made a trip of investigation over part of Marshall's 
route. (NelwHi: Addreu — The Chesapeake and Ohio Railway, 15.) 



44 JOHN MARSHALL 

velocity of the current gives him some amdety, but 
" the currents of the Hudson, of the Mohawk, and 
of the Mississippi, are very strong; and . . a practice 
so entirely novel as the use of steam in navigation, 
will probably receive great improvement/' 

The expense of the undertaking must, he says, de- 
pend on the use to be made of the route. Should the 
intention be only to assist the local tra£Sc of the 
" upper coimtry down the James river,*' the expense 
would not be great. But, "if the views of the legis- 
Iatiu*e shall extend to a free commercial intercourse 
with the western states," the route must compete 
with others then existing "or that may be opened." 
In that case "no improvement ought to be under- 
taken but with a determination to make it complete 
and effectual." K this were done, the commerce of 
Kentucky, Ohio, and even a part of Southwestern 
Pennsylvania would pour through Virginia to the 
Atlantic States. This was a rich prize which other 
States were exerting themselves to capture. More- 
over, such "commercial intercourse" would bind 
Virginia to the growing West by "strong ties" of 
friendly sentiments," and these were above price. 
In that mysterious future which is in reserve, and 
is yet hidden from us, events may occur to render" 
such a community of interest and mutual regard 
"too valuable to be estimated in dollars and cents." 

Marshall pictures the growth of the West, " that 
extensive and fertile coimtry . . increasing in wealth 
and population with a rapidity which baffles calcu- 
lation." Not only would Virginia profit by opening 
a great trade route to the West, but the Nation 






THE PERIOD OF AMERICANIZATION 45 

would be vastly benefited. "Every measure which 
tends to cement more closely the union of the east- 
em with the western states *' would be invaluable to 
the whole country. The military uses of "this cen- 
tral channel of communication ^^ were highly impor- 
tant: "For the want of it, in the course of the last 
autiunn, government was reduced to the necessity of 
transporting arms in waggons from Richmond to 
the falls of the Great Kanawha/' and "a similar 
necessity may often occur.'* ^ 

When Marshall returned to Richmond, he found 
the coimtry depressed and in turmoil. The war had 
begun dismally for the Americans. Our want of 
military equipment and training was incredible and 
assured those disasters that quickly fell upon us. 
The Federalist opposition to the war grew ever 
bolder, ever more bitter. The Massachusetts House 
of Representatives issued an "Address" to the peo- 
ple, urging the organization of a ** peace party/* ad- 
juring "loud and deep . •disapprobation of this war," 
and demanding that nobody enlist in the army.^ 
Pamphlets were widely circulated, abusing the 
American Government and upholding the British 
cause. The ablest of these, "Mr. Madison's War," 
was by John Lowell of Boston. 

The President, he said, "impelled" Congress to 
declare an "oflFensive" war against Great Britain. 
Madison was a member of "the French party." 
British impressment was the pursuance of a soimd 
policy; the British doctrine — once a British subject, 

^ Report cf the Commissionera appointed to view Certain Rivers 
foiikin the Commonwealth qf Virginia^ 3S-89. 
> NQes: Weeiiy Register, n, 418. 



46 JOHN MABSHALL 

always a British subject — was unassailable. The 
Orders in Coimcil were just; the execution of them 
"moderation** itself. On every point, in short, the 
British Government was right; the French, diabol- 
ical; the American, contemptible and wrong. How 
trivial America's complaints, even if there was a 
real basis for them, in view of Great Britain's un- 
selfish struggle against "the gigantic dominion of 
France-" 

K that Power, " swayed'* by that satanic genius. 
Napoleon, should win, would she not take Nova 
Scotia, Canada, Louisiana, the Antilles, Florida, 
South America? After these conquests, would not 
the United States, "the only remaining republic," 
be conquered. Most probably. What then ought 
America to do? "In war offensive and imjust, the 
citizens are not only obliged not to take part, but 
by the laws of God, and of civil society, they are 
boimd to abstain." What were the rights of citizens 
in war-time? To oppose the war by tongue and pen, 
if they thought the war to be wrong, and to refuse to 
serve if called "contrary to the Constitution." ^ 

Such was the Federalism of 1812-15, such the ar- 
guments that would have been urged for the election 
of Marshall had he been chosen as the peace can- 
didate. But the peace Republicans of New York 
nominated the able, cunning, and politically corrupt 

^ Lowdl: Mr. Madison* 9 Waar: by *'A New England Farmer." 
A still better illustration of Federalist hostility to the war and the 
Government is fomid in a letter of Eaekiel Webster to his brother 
Daniel: "Let gamblers be made to contribute to the support of this 
war, which was declared by men of no better principles than them- 
selves." (Ezekiel Webster to Daniel Webster, Oct 29, 1814, Van 
Tyne, 5^.) Webster here refers to a war tax on playing-cards. 



IL 



THE PERIOD OF AMERICANIZATION 47 

De Witt Clinton; and this man, who had assured the 
Federalists that he favored an "honourable peace" 
with England,^ was endorsed by a Federalist caucus 
as the anti-war standard-bearer,^ though not with- 
out a swirl of acrimony and dissension. 

But for the immense efforts of Clinton to secure 
the nomination, and the desire of the Federalists and 
all conservatives that Marshall should continue as 
Chief Justice,' it is possible that he might have been 
named as the opponent of Madison in the Presiden- 
tial contest of 1812. "I am far enough from desiring 
Clinton for President of the United States,'* wrote 
Pickering in the preceding July; "I would infinitely 
prefer another Virginian — if Judge Marshall could 
be the man/ * 

Marshall siurely would have done better than Clin- 
ton, who, however, carried New York, New Jersey, 
Delaware, Maryland, and all the New England 
States except Vermont. The mercantile classes 
would have rallied to Marshall's standard more 
enthusiastically than to Clinton's. The lawyers 
generally would have worked hard for him. The 
Federalists, who accepted Clinton with repugnance, 
would have exerted themselves to the utmost for 
Marshall, the ideal representative of Federalism. He 
was personally very strong in North Carolina; the 
capture of Pennsylvania might have been possible;* 
Vermont might have given him her votes. 

^ Harper to Lynn, Sept 25, 1812, Steiner, 584. 

< See McMaster, iv, IWHtOO. * MOTison: OHs, i, 899. 

^ Pickering to Pennington, July 22, 1812, N.E. Federaliam: Adams* 
889. 

* Tlie vote of Pennsylvania, with those cast for Clinton, would 
have dected MarahaU. . 



48 JOHN MARSHALL 

The Federalist resistance to the war grew more de- 
termined as the months wore on. Throughout New 
England the men of wealth, nearly all of whom were 
Federalists, declined to subscribe to the Govern- 
ment loans. ^ The Governors of the New England 
States refused to aid the National Government with 
the militia.^ In Congress the Federalists were ob- 
structing war measures and embarrassing the Gov- 
ernment in every way their ingenuity could devise. 
One method was to force the Administration to tell 
the truth about Napoleon's pretended revocation of 
his obnoxious decree. A resolution asking the Presi- 
dent to inform the House ** when, by whom, and in 
what manner, the first intelligence was given to this 
Government" of the St. Cloud Decree, was offered 
by Daniel Webster,^ who had been elected to Con- 
gress from New Hampshire as the fiercest youthful 
antagonist of the war in his State.* The Republi- 
cans agreed, and Webster's resolution was passed by 
a vote of 137 yeas to only 26 nays.^ 

In compliance the President transmitted a long re- 
port. It was signed by the Secretary of State, James 
Monroe, but bears the imprint of Madison's lucid 
mind. The report states the facts upon which Con- 
gress was compelled to declare war and demonstrates 

* Babcock, 157; and see Dewey: Financial History of the United 
States, 1S3. 

' For an excellent statement of the conduct of the Federalists at 
this time see Morison: Otis, n, 53-66. "The militia of Massachu« 
setts, seventy thousand in enrolment, well-drilled, and well-equipped, 
was definitely withdrawn from the service of the United States in 
September, 1814.'* (Babcock, 155.) Connecticut did the same thing. 
(lb. 156.) 

' Annals, 18th Cong. Ist Seas. 802. 

* See McMaster, iv, 218-14. . » Annals, 18th Cong. Ist Sess. 802 



THE PERIOD OF AMERICANIZATION 49 

that the Decree of St. Cloud had nothing to do with 
our militant action, since it was not received until 
more than a month after our declaration of war. 
Then follow several dear and brilliant paragraphs 
setting forth the American view of the causes and 
purposes of the war.* 

Timothy Pickering was not now in the Senate. The 
Republican success in Massachusetts at the State 
election of 1810 had given the Legislatiu*e to that 
party,^ and the pugnacious Federalist leader was 
left at home. There he raged and intrigtied and wrote 
reams of letters. Monroe's report lent new fury to 
his always burning wrath, and he sent that document, 
with his malediction upon it, to John Marshall at 
Richmond. In reply the Chief Justice said that the 
report "contains a labored apology for France but 
none for ourselves. It furnishes no reason for our 
tame immurmiuing acquiescence under the double 
insult of withholding this paper [Decree of St. Cloud] 
from us & declaring in our face that it has been put 
in our possession. 

"The report is silent on another subject of still 
deq)er interest. It leaves unnoticed the fact that the 
Berlin & Milan decrees were certainly not repealed 
by that insidious decree of April since it had never 
been communicated to the French courts and cruiz- 
ers, & since their cruizers had at a period subsequent 
to the pretended date of that decree received orders 

* Am. State Papers, For. Rd. m, 609-12. 

* The Republican victory was caused by the violent British parti- 
sanship of the Federalist leaders. In spite of the distress the people 
soffered from the Embargo, they could not, for the moment, tolerate 
Federalbt opposition to their own country. (See Adams : U,S. v, 215.) 



50 JOHN MARSHALL 

to continue to execute the oflF^isive decrees on Amer* 
ican vessels. 

"The report manifests no sensibility at the dis- 
graceful circumstances which tend strongly to prove 
that this paper was fabricated to satisfy the importu- 
nities of Mr. Barlow, was antedated to suit French 
purposes; nor at the contempt manifested for the 
feelings of Americans and their government, by not 
deigning so to antedate it as to save the credit of our 
Administration by giving some plausibility to their 
assertion thavt the repeal had taken place on the 1^^ 
of Nov' — But this is a subject with which I dare 
not trust myself." 

The plight of the American land forces, the splendid 
and unrivaled victories of the American Navy, ap- 
parently concerned Marshall not at all. His eyes 
were turned toward Europe; his ears strained to 
catch the soimds from foreign battle-fields. 

"I look with anxious solicitude — with mingled 
hope & fear," he continues, "to the great events 
which are taking place in the north of Germany. 
It appears probable that a great battle will be 
fought on or near the Elbe & never had the world 
more at stake than will probably depend on that 
battle. 

"Your opinions had led me to hope that there was 
some prospect for a particular peace for oiu^elves. 
My own judgement, could I trust it, would tell me 
that peace or war will be determined by the events 
in Europe."^ 

1 Marshall to Pickering, Dec 11, IBIS, Pickering MSS. Mass. Hist. 
Soc 



THE PERIOD OF AMERICANIZATION 51 

The "great battle'' which Marshall foresaw had 
been fought nearly eight weeks before his letter was 
written. Napoleon had been crushingly defeated at 
Leipzig in October, 1813, and the British, Prussian, 
and other armies which Great Britam had combined 
against him, were already invading France. When, 
later, the news of this arrived in America, it was 
hailed by the Federalists with extravagant rejoic- 
ings.^ 

Secession, if the war were continued, now became 
the purpose of the more determined Federalist lead- 
ers. It was hopeless to keep up the struggle, they 
said. The Administration had precipitated hostili- 
ties without reason or right, without conscience or 
sense.* The people never had favored this wretched 
conflict; and now the tyrannical Government, failing 
to secure volunteers, had resorted to conscription — 
an "infamous*' expedient resorted to in brutal vio- 
lation of the Constitution.' So came the Hartford 

^ Morison: OHa, n, 54-56. 

^ ''CuBaBTmsGoYEBNMENr! I would march at 6 days notice for 
Washington . . and I would swear upon the ailar never to return till 
Madiscm was buried under the ruins of the capitol." (Herbert to 
Wd[)8ter, April 20, 181S, Van Tyne, 27.) 

' The Federalists frantically opposed conscription. Daniel Web- 
ster, especially, denounced it. *'Is this [conscription] . . consistent 
with the character of a free Government? • • No, Sir. . . The G^nsti- 
tution is libelled, foully libelled. The people of this country have 
not established . . such a fabric of despotism. . • 

*' Where is it written in the Constitution . . that you may take 
children from their parents . . & compel them to fight the battles of 
any war, in which the folly or the wickedness of Government may 
engage it? . . Such an abominable doctrine has no foundation in the 
Gmstitution." 

Conscription, Webster said, was a gambling device to throw the 
dice for blood; and it was a ''horrible lottery." ''May God, in his 
compassion, shield^ me from . • the enormity of this guilt." (See 



> 



62 JOHN MARSHALL 

Convention which the cool wisdom of George Cabot 
saved from proclaiming secession.^ 

Of the two pretenses for war against Great Britain, 
the Federalists alleged that one had been removed 
even before we declared war, and that only the false 
and shallow excuse of British impressment of Amer- 
ican seamen remained. Madison and Monroe recog- 
nized this as the one great remaining issue, and an 
Administration pamphlet was published asserting 
the reason and justice of the American position. 
This position was that men of every coimtry have a 
natural right to remove to another land and there 
become citizens or subjects, entitled to the protec- 
tion of the government of the nation of their adop- 
tion. The British principle, on the contrary, was that 
British subjects could never thus expatriate them- 
selves, and that, if they did so, the British Govern- 
ment coidd seize them wherever foimd, and by force 
compel them to serve the Empire in any manner the 
Government chose to direct. 

Monroe's brother-in-law, George Hay, still the 
United States Attorney for the District of Virginia, 
was selected to write the exposition of the American 

Webster's speech on the Coiiscription Bill delivered in the House of 
Representatives, December 9, 1814, Van T^ne, 5d-68; see also 
Curtis: Life of Danid Wehster, i, 138.) 

Webster had foretold what he meant to do: ''Of course we shidl 
oppose such usurpation." (Webster to his brother, Oct. 80, 1814» 
Van Tyne, 54.) Again: "The conscription has not come up — if it 
does it will cause a storm such as was never witnessed here*' [ia 
Washington]. (Same to same, Nov. 29, 1814, ib, 55.) 

* See Morison: OHa^ n, 78-199. Pickering feared that Cabot's 
moderation would prevent the Hartford Convention from taking 
extreme measures agamst the Government. (See Pickering to Lowell» 
Nov. 7, 1814, N.E. Fedendisnu Adams, 406.) 



THE PEKIOD OF AMERICANIZATION 63 

view. It seems probable that his manuscript was 
caref uUy revised by Madison and Monroe, and per- 
haps by JeflFerson.* Certainly Hay stated with sin- 
gular precision the views of the great Republican 
triumvirate. The pamphlet was entitled "A Trea- 
tise on Expatriation." He began: "I hold in utter 
reprobation the idea that a man is boimd by an ob- 
ligation, permanent and unalterable, to the govern- 
ment of a country which he has abandoned and his 
allegiance to which he has solemnly adjured.'' ^ 

Immediately John Lowell answered.' Nothing 
keener and more spirited ever came from the pen of 
that gifted man. " The presidential pamphleteer," as 
Lowell called Hay, ignored the law. The maxim, 
once a subject always a subject, was as true of 
America as of Britain. Had not Ellsworth, when 
Chief Justice, so decided in the famous case of Isaac 
Williams? * Yet Hay sneered at the opinion of that 
distinguished jurist.*^ 

Pickering joyfully dispatched Lowell's brochure to 
Marshall, who lost not a moment in writing of his 
admiration. " I had yesterday the pleasure of receiv- 

^ Some sentences are pari^hrases of expressions by Jefferson on 
the same subject. For example: ''I hold the right of expatriation to 
be inherent in every nuin by the laws of nature, and incapable of 
being rightfully takai from him even by the united will of every 
other person in the nation." (Jefferson to Gallatin, June £6, 1806, 
Works: Ford, x, 273.) Again: ''Our particular and separate griev- 
ance is only the impressment of our citizens. We must sacrifice the 
last dollar and drop of blood to rid us of that badge of slavery." 
(Jefferson to Crawford, Feb. 11, 1815, ib. xi, 450-51.) This letter was 
written at Monticello the very day that the news of peace reached 
Washington. 

^ Hay: A Treatise on Exyatriatum^ 9A. 

' Lowell: Review of 'A Treatise on Expatriation*: by **A Massachu- 
setts Lawyer." * See vol. in, chap, i, of this work. 

* See Review qf *A Treatise on Expatriation,* 6. j — 



64 JOHN MARSHALL 

ing your letter of the 8th accompanying M' Lowell's 
very masterly review of the treatise on expatriation. 
I have read it with great pleasure, & thank you very 
sincerely for this mark of your recollection. 

" Could I have ever entertained doubts on the sub- 
ject, this review would certainly have removed them. 
Mingled with much pungent raillery is a solidity of 
argument and an array (A authority which in my 
judgement is entirely conclusive. But in truth it is 
a question upon which I never entertained a scintilla 
of doubt; and have never yet heard an argument 
which ought to excite a doubt in any soimd and re- 
flecting mind. It will be to every thinking American 
a most afflicting circumstance, should our govern- 
ment on a principle so completely rejected by the 
world proceed to the execution of unfortunate, of 
honorable, and of innocent men." * w 

Astonishing and repellent as these words now 
appear, they expressed the views of every Federalist 
lawyer in America. The doctrine of perpetual alle- 
giance was indeed then held and practiced by every 
government except our own,* nor was it rejected by 
the United States until the Administration became 
Republican. Marshall, announcing the opinion of 
the Supreme Court in 1804, had held that an alien 
could take lands in New Jersey because he had lived 
in that State when, in 1776, the Legislatiu^ passed 
a law making all residents citizens.^ Thus he had 
declared that an American citizen did not cease to be 

^ Marshall to Pickering, Aprfl 11, 1814, Pickering MSS. Mass. 
Hist. Soc. ^ 

* See Channing: Jeff. System, 170-71, 

* M'Uvaine iw. Coze's Lessee, 4 Cranch, 209. 



THE PERIOD OF AMERICANIZATION 55 

such because he had become the subject of a foreign 
power. Four years later, in another opinion involv- 
ing expatriation, he had stated the law to be that a 
British subject, bom in England before 1775, could 
not take, by devise, lands in Maryland, the statute 
of that State forbidding aliens from thus acquiring 
property there. ^ In both these cases, however, Mar- 
shall refrained from expressly declaring in terms 
against the American doctrine. 

Even as late as 1821 the Chief Justice undoubtedly 
retained his opinion that the right of expatriation 
did not exist,* although he did not say so in express 
terms. But in Marshall's letter on Lowell's pam- 
phlet he flatly avows his belief in the principle of per- 
I>etual allegiance, any direct expression on which he so 
carefully avoided when deciding cases involving it. 

Thus the record shows that John Marshall was as 
bitterly opposed to the War of 1812 as was Pickering 
or Otis or Lowell. So entirely had he become one of 
" the aristocracy of talents of reputation, & of prop- 
erty,** as Plumer, in 1804, had so accurately styled 
the class of which he himself was then a member,' 
that Marshall looked upon all but one subject then 
before the people with the eyes of confirmed reac- 
tion. That subject was Nationalism. To that su- 
preme cause he was devoted with all the passion 
of his deep and powerful natiue; and in the service 
of that cause he was soon to do much more than he 
had already performed. 

^ Dawson's Lessee vs. Godfrey, 4 Cranch, 821. 
* Case of the Santissima Trinidad et al,, 1 Brockenbrough» 478-87; 
and see 7 Wheaton, 288. 
' Plumer to Livermore, March 4, 1804, Plumer MSS. Lib. Cong. 



«6 JOHN MARSHALL 

Our second war with Great Britain accomplished 
none of the tangible and immediate objects for which 
it was fought. The British refused to abandon " the 
right** of impressment; or to disclaim the British 
sovereignty of the oceans whenever they chose to 
assert it; or to pay a farthing for their spoliation of 
American conmierce. On the other hand, the British 
did not seeing one of their demands.^ The peace 
treaty did little more than to end hostilities. 
> But the war achieved an inestimable good — it de- 

Europeanized America. It put an end to our think- 
ing and feeling only in European terms and emotions. 
It developed the spirit of the new America, bom 
since our political independence had been achieved, 
and now for the first time emancipated from the in- 
tellectual and spiritual sovereignty of the Old World. 
It had revealed to this purely American generation 
a consciousness of its own strength; it could exult in 
the fact that at last America had dared to fight. 

The American Navy, ship for ship, oflS^cer for offi- 
cer, man for man, had proved itself superior to 
the British Navy, the very name of which had hith- 
erto been mentioned only in terror or admiration 
of its imconquerable might. In the end, raw and 
untrained American troops had beaten British regu- 
lars. American riflemen of the West and South had 

^ For example, the British ** right " of impressment must be formally 
and plainly acknowledged in the treaty; an Indian dominion was to 
be established, and the Indian tribes were to be made parties to the 
settlements; the free navigation of the Mississippi was to be guaran* 
teed to British vessels; the right of Americans to fish in Canadian 
waters was to be ended. Demands far more extreme were made by the 
British press and public. (See McMaster, iv, 1^6(H74; and see esp^ 
cially Morison: 0H8,Up 171.) 



THE PERIOD OF AMERICANIZATION 67 

overwhelmed the flower of all the armies of Europe. 
An American frontier oflScer, Andrew Jackson, had 
easily outwitted some of Great Britain's ablest and 
most experienced professional generals. In short, 
on land and sea America had stood up to, had really 
beaten, the tremendous Power that had overthrown 
the mighty Napoleon. 

Such were the feelings and thoughts of that Young 
America which had come into being since John Mar- 
shall had put aside his Revolutionary uniform and 
arms. And in terms very much like those of the 
forgoing paragraph the American people generally 
expressed their sentiments. 

Moreover, the Embargo, the Non-Intercourse and 
Non-Importation Acts, the British blockades, the 
war itself, had revolutionized the coimtry econom- 
ically and socially. American manufacturing was 
firmly established. Land travel and land traffic 
grew to proportions never before imagined, never 
before desired. The people of distant sections be- 
came acquainted. 

The eyes of all Americans, except those of the agedr 
or ageing, were turned from across the Atlantic Ocean | 
toward the boundless, the alliuing West — their 
thoughts diverted from the conmiotions of Europe 
and the historic antagonism of foreign nations, to the 
economic conquest of a limitless and virgin empire 
and to the development of incalculable and un- 
touched resources, all American and all their own. 

The migration to the West, which had been in- 
creasing for years, now became almost a folk move- 
ment. The Eastern States were drained of their 



< 



6d JOHN MARSHALL 

young men and women. Some towns were almost 
depopulated. ^ And these hosts of settlers carried into 
wilderness and prairie a spirit and pride that had not 
been seen or felt in America since the time of the 
Revolution. But their high hopes were to be quickly 
turned into despair, their pride into ashes; for a 
condition was speedily to develop that would engulf 
them in disaster. It was this situation which was to 
call forth some of the greatest of Marshall's C!onsti- 
tutional opinions. This forbidding future, however, 
was foreseen by none of that vast throng of home- 
seekers crowding every route to the " Western Coun- 
try," in the year of 1815. Only the rosiest dreams 
were theirs and the spirited consciousness that they 
were Americans, able to accomplish all things, even 
the impossible. 

It was then a new world in which John Marshall 
found himself, when, in his sixtieth year, the war 
which he so abhorred came to an end. A state of 
things surrounded him little to his liking and yet 
soon to force from him the exercise of the noblest ju- 
dicial statesmanship in American history. From the 
extreme independence of this new period, the intense 
and sudden Nationalism of the war, the ideas of lo- 
cal sovereignty rekindled by the New England Fed- 
eralists at the dying fires that JeflFerson and the Re- 
publicans had lighted in 1798, and from the play of 
conflicting interests came a reaction against Nation- 
alism which it was Marshall's high mission to check 
and to turn into channels of National power, Na- 
tional safety, and National well-being. 

^ McMaster, iv, 8S8-88. 



CHAPTER n 

MARSHALL AND STORY 

Either the office was made for the man or the man for the office. 

(George S. EBIIard.) 

I am in love with his character, positively in love. (Joseph Story.) 

In the midst of these gay circles my mind is carried to my own fireside and to 
my beloved wife. (Marshall.) 

Now the man Moses was very meek, above all the men whidi were upon the 
face of the earth. (Numbers xn, 8.) 

"It will be difficult to find a character of firmness, 
enough to preserve his independence on the samej 
bench with Marshall/' ^ So wrote Thomas JeflFerson * 
one year after he had ceased to be President. He was 
counseling Madison as to the vacancy on the Su- 
preme Bench and one on the district bench at Rich- 
mond, in filling both of which he was, for personal 
reasons, feverishly concerned. 

We are now to ascend with Marshall the mountain 
peaks of his career. Within the decade that followed 
after the dose of our second war with Great Britain, 
he performed nearly all of that vast and creative 
labor, the lasting results of which have given him 
that distinctive title, the Great Chief Justice. Dur- 
ing that period he did more than any other one man 
ever has done to vitalize the American Constitution; 
and, in the performance of that task, his influence, 
over his associates was unparalleled.* 

^ Jefferson to Madison, May 25, 1810, Works: Ford, xi, 140. 

''There ia no man in the court that strikes me like Marshall. . . I 
have never seen a man of whose intellect I had a higher opinion." 
(Webster to his brother, March 28, 1814, Private Correspondence of 
Daniel Webster: Webster, i, «44.) 

* *'In the possession of an ordinary man . . it [the office of Chief 



60 JOHN MARSHALL 

When Justices Chase and Gushing died and their 
successors Gabriel Duval* and Joseph Story were 
appointed, the majority of the Supreme Gourt, for 
the first time, became Republican. Yet Marshall 
continued to dominate it as fully as when its mem- 
bers were of his own political faith and views of gov- 
ernment.* In the whole history of coiu^ts there is no 
parallel to such supremacy. Not without reason was 
that tribunal looked upon and called ^'Marshall's 
Court." It is interesting to search for the sources 
of his strange power. 

These sources are not to be found exclusively in the 
strength of Marshall's intellect, surpassing though 
it was, nor yet in the mere dominance of his will. 
Joseph Story was not greatly inferior to Marshall in 
mind and far above him in accomplishments, while 
William Johnson, the first Justice of the Supreme 
Court appointed by Jefferson, was as determined as 
Marshall and was ** strongly imbued with the prin- 
ciples of southern democracy, bold, independent, 
eccentric, and sometimes harsh." * Nor did learning 
give Marshall his conmianding influence. John Jay 
and Oliver Ellsworth were his superiors in that re- 
spect; while Story so infinitely surpassed him in eru- 
dition that, between the two men, there is nothing 
but contrast. Indeed, Marshall had no "learning" 

Justice] would be very apt to disgrace kim." (Story to McLean, Oct 
12, 1SS5, Story, n, 208.) 

^ Justice Duval's name is often, incorrectly, spelled with two 
" I's." 

* ''No man had ever a stronger influence upon the minds of 
others." (American Juritt, xrv; 242.) 

* Ingersoll: Hiftorical Sketch qf the Second War between the United 
Statee and Great Britain, 2d Series, i, 74. 



MABSHALL AND STORY 61 

at all in the academic sense; ^ we must seek else- 
where for an explanation of his peculiar influence. 

This explanation is, in great part, furnished by 
Marshall's personality. The manner of man he was, 
of course, is best revealed by the well-authenticated 
accounts of his daily life. He spent most of his time 
at Richmond, for the Supreme Court sat in Wash- 
ington only a few weeks each year. He held circuit 
court at Raleigh as well as at the Virginia Capital, 
but the sessions seldom occupied more than a fort- 
night each. In Richmond, then, his characteristics 
were best known; and so striking were they that 
time has but little dimmed the memory of them. 

Marshall, the Chief Justice, continued to neglect his 
dress and personal appearance as much as he did 
when, as a lawyer, his shabby attire so often " brought 
a blush" to the cheeks of his wife,^ and his manners 
were as "lax and lounging'* as when Jeflferson called 
them proofs of a "profound hypocrisy." ' Although 
no man in America was less democratic in his ideas i 
of government, none was more democratic in his! 
contact with other people. To this easy bonhomie ^ 
was added a sense of himior, always quick to appre- 
ciate an amusing situation. 

When in Richmond, Marshall often did his own 
marketing and carried home the purchases he made. 
The tall, ungainly, negligently dad Chief Justice, 
ambling along the street, his arms laden with pur- 

^ ''He was not, in any sense of the word, a learned man." (George 
S. Hillard in Nokk American Review, XLn, 224.) 

* See vol. I, 163, of this work; also SoiUkem Literary Messenger p 
[, 154; and Terhune: Colonial Homesteads, 92. 

* See vol. n, 189, of this work. 




62 JOHN MARSHALL 

chases, was a familiar sight. ^ He never would hurry, 
and habitually lingered at the market-place, chat- 
ting with everybody, learning the gossip of the town, 
listening to the poUtical talk that in Richmond never 
ceased, and no doubt thus catching at first hand the 
drift of public sentiment.^ The humblest and poorest 
man in Virginia was not more unpretentious than 
John Marshall. 

No wag was more eager for a joke. One day, as he 
loitered on the outskirts of the market, a newcomer 
in Richmond, who had never seen Marshall, oflFered 
him a small coin to carry home for him a turkey just 
purchased. Marshall accepted, and, with the bird 
under his arm, trudged behind his employer. The in- 
cident sent the city into gales of laughter, and was so 
in keeping with Marshall's ways that it has been re- 
told from one generation to another, and is to-day 
almost as much alive as ever.' At another time the 
Chief Justice was taken for the butcher. He called 
on a relative's wife who had never met him, and 
who had not been told of his plain dress and rustic 
manners. Her husband wished to sell a calf and she 
expected the butcher to call to make the trade. She 
saw Marshall approaching, and judging by his ap- 
pearance that he was the butcher, she directed the 
servant to tell him to go to the stable where the ani- 
mal was awaiting inspection.* 

It was Marshall's custom to go early every morning 
to a farm which he owned four miles from Richmond. 
For the exercise he usually walked, but, when he 

* Mordecai: Richmond in By-Oone Days, 64. * Terhune, 91. 

* 76. 92; and see Howe: Historical CoUections of Virginia, 266. 

* Oreen Bag, vin> 486. 



MARSHALL AND STORY 09 

wished to take something heavy, he would ride. A 
stranger coming upon him on the road would have 
thought him one of the poorer small planters of the 
vicinity. He was extremely fond of children and, if 
he met one trudging along the road, he would take 
the chad up on the horse and carry it to its destina- 
tion. Often he was seen riding into Richmond from his 
farm, with one child before and another behind him.^ 

Bishop Meade met Marshall on one of these morn- 
ing trips, carrying on horseback a bag of clover seed.^ 
On another, he was seen holding on the pommel a jug 
<rf whiskey which he was taking out to his farm- 
hands. The cork had come out and he was using his 
thimib as a stopper.' He was keenly interested in 
farming, and in 1811 was elected President of the 
Richmond Society for Promotion of Agriculture.* 

The distance from Richmond to Raleigh was, by 
road, more than one hundred and seventy miles. 
Except when he went by stage,* as he seldom did, it 
must have taken a week to make this journey. He 
traveled in a primitive vehicle called a stick gig, 
drawn by one horse which he drove himself, seldom 
taking a servant with him.^ Making his slow way 

^ Personal experience related by Dr. William P. Palmer to Dr. J. 
IVanklin Jameson, and by him to the author. 

* Meade: Old Churches, Ministers and Families of Virginia, n, 222. 
' Magazine cf American History, xn, 70; also Green Bag, vm, 486. 
^ Anderson, 214. 

^ The stage schedule was much shorter, but the hours of travel very 
kmg. The stage left Petersburg at 8 A.M., arrived at Warrenton at 
8 P.M., left Warrenton at 3 a.m., and arrived at Raleigh the same 
night. (Data furnished by Professor J. Archibald Henderson.) The 
stage was seldom on time, however, and the hardships of traveling in 
it very great. Marshall used it only when in extreme haste, a state of 
mind into which he seldom would be driven by any emergency. 

* Mordecai, 64-65. Bishop Meade says of Marshall on his trips to 
Fauquier County, '* Servant he had none." (Meade» n, 222.) 



M JOHN MARSHALL 

through the immense stretdies of tar pines and sandy 
fields, the Chief Justice doubtless thought out the 
solution of the problems before him and the plain, 
dear, large statements of his conclusions which, from 
the bench later, announced not only the law of par- 
ticular cases, but fundamental policies of the Nation* 
His surroundings at every stage of the trip encour- 
aged just such reflection — the vast stillness, the deep 
forests, the long hours, broken only by some accident 
to gig or harness, or interrupted for a short time to 
feed and rest his horse, and to eat his simple meal. 

Diuing these trips, Marshall would become so 
abstracted that, apparently, he would forget where 
he was driving. Once, when near the plantation of 
Nathaniel Macon in North Carolina, he drove over 
a sapling which became wedged between a wheel 
and the shaft. One of Macon's slaves, working in 
an adjacent field, saw the predicament, hurried to 
his assistance, held down the sapling with one hand, 
and with the other backed the horse until the gig 
was free. Marshall tossed the negro a piece of 
money and asked him who was his owner. "Marse 
Nat. Macon," said the slave. "He is an old friend,** 
said Marshall; "tell him how you have helped me,'* 
giving his name. When the negro told his master, 
Macon said: "That was the great Chief Justice 
Marshall, the biggest lawyer in the United States." 
The slave grinned and answered: "Marse Nat., he 
may be de bigges* lawyer in de United States, but he 
ain't got sense enough to back a gig oflF a saplin'." ^ 

^ As related by M. D. Haywood, Librarian of the Supreme Court 
of North Carolina, to Professor J. Archibald Henderson and by him to 
the author; and see Harper's Magazine, lxx, 610; World*e Work, i, 895. 



MARSHALL AND STORY 65 

At night he would stop at some log tavern on the 
route, eat with the family and other guests, if any 
were present, and sit before the fireplace after the 
meal, talking with all and listening to all like the 
simple and humble countryman he appeared to be. 
Since the minor part of his time was spent in court, 
and most of it about Richmond, or on the road to and 
from Raleigh, or journeying to his Fauquier Coimty 
plantation and the beloved moimtains of his youth 
where he spent the hottest part of each year, it is 
doubtful whether any other judge ever maintained 
such intimate contact with people in the ordinary 
walks of life as did John Marshall. 

The Chief Justice always arrived at Raleigh stained 
and battered from travel.^ The town had a popula- 
tion of from three hundred to five himdred.^ He was 
wont to stop at a tavern kept by a man named Cooke 
and noted for its want of comfort; but, although the 
inn got worse year after year, he still frequented it. 
Early one morning an acquaintance saw the Chief 
Justice go to the woodpile, gather an armful of wood 
and return with it to the house. When they met 
later in the day, the occurrence was recalled. " Yes,*' 
said Marshall, "I suppose it is not convenient for 
Mr. Cooke to keep a servant, so I make up my own 
fires."' 

The Chief Justice occupied a small room in which 
were the following articles : "Abed, . . two split-bot- 

^ Judge James C. MacRae in John Marshall — Life, Character and 
Judicial Services: Dillon, n, 68. 

* As late as April, 1811, the population of Raleigh was between six 
hundred and seven hundred. Nearly all the houses were of wood. By 
1810 there were only four brick houses in the town. 

' Magazine of American History, xn, 69. 



66 JOHN MARSHALL 

torn chairs, a pine table covered with grease and ink, 
a cracked pitcher and broken bowl." The host ate 
with his guests and used his fingers instead of fork or 
knife. ^ When court adjourned for the day, Marshall 
would play quoits in the street before the tavern 
"with the public street characters of Raleigh,*' who 
were lovers of the game.^ 

He was immensely popular in Raleigh, his famil- 
iar manners and the justice of his decisions appealiog 
with equal force to the bar and people alike. Writing 
at the time of the hearing of the Granville case,* 
John Haywood, then State Treasurer of North 
Carolina, testifies: "Judge Marshall . . is greatly re- 
spected here, as well on accoimt of his talents and 
uprightness as for that sociabiUty and ease of manner 
which render all happy and pleased when in his 
company." * 

Li spite of his sociability, which tempted him, 
while in Richmond, to visit taverns and the law 
o£Sces of his friends, Marshall spent most of the day 
in his house or in the big yard adjoining it, for Mrs. 
Marshall's affliction increased with time, and the 
Chief Justice, whose affection for his wife grew as 
her illness advanced, kept near her as much .as possi- 

^ Account of eye-witness as related by Dr. Kemp P. Battle of Ba* 
leigh to Professor Henderson and by him to the author. 

Another tavern was opened about 1806 by one John Marshall. He 
had been one of the first commissioners of Raleigh, serving until 1797. 
He was no relation whatever to the Chief Justice. As already stated 
(vol. I, footnote to 15, of this work) the name was a common one. 

* Mr. W. J. Peele of Raleigh to Professor Henderson. 

» See infra, 154-56. 

^ Haywood to Steele, June 10, 1805. (MS. supplied by Professor 
Henderson.) 



MARSHALL AND STORY 67 

ble. In Marshall's grounds and near his honse were 
several great oak and ehn trees, beneath which was 
a spring; to this spot he would take the papers in 
cases he had to decide and, sitting on a rustic bench 
under the shade, would write many of those great 
opinions that have immortalized his name.^ 

Mrs. Marshall's malady was largely a disease of 
the nervous system and, at times, it seemingly 
affected her mind. It was a common thing for the 
Chief Justice to get up at any hour of the night and, 
without putting on his shoes lest his footfalls might 
further excite his wife, steal downstairs and drive 
away for blocks some wandering animal — a cow, 
a pig, a horse — whose soimds had annoyed her.^ 
Even upon entering his house during the daytime, 
Marshall would take off his shoes and put on soft 
slippers in the hall.' 

She was, of course, imequal to the management of 
the household. When the domestic arrangements 
needed overhauling, Marshall would induce her to 
take a. long drive with her sister, Mrs. Edward Car- 
rington, or her daughter, Mrs. Jacquelin B. Harvie, 
over the still and shaded roads of Richmond. The 
carriage out of sight, he would throw off his coat and 

^ World's Work, i, 805. This statement is supported by the testi-^ 
mony of Mr. Edward V. Valentine of Richmond, who has spent many 
years gathering and verifying data concerning Richmond and its early 
citizens. It is also confinned by the Honorable James Keith, unlil 
recentiy President of the Court of Appeals of Virginia, and by others 
of the older residents of Richmond. For some opinions thus written, 
see chaps, iv, v, and vi of this volume. 

* Oreen Bag, vm, 484. Sympathetic Richmond even ordered the 
town dock and town bell muffled. (Meade, n, 222.) 

* Statements of two eye-witnesses. Dr. Richard Crouch and William 
F. Gray, to Mr. Edward V. Valentine and by him related to the author. 



68 JOHN MARSHALL 

vest, roll up his shirt-sleeves, twist a bandanna hand- 
kerchief about his head, and gathering the servants, 
lead as well as direct them in dusting the walls and 
furniture, scrubbing the floors and setting the house 
in order. ^ 

Numerous incidents of this kind are well authenti- 
cated. To this day Marshall's unselfish devotion to 
'his infirm and distracted wife is recalled in Rich- 
mond. But nobody ever heard the slightest word of 
complaint from him; nor did any act or expression 
of countenance so much as indicate impatience. 

Li his letters Marshall never fails to admonish his 
wife, who seldom if ever wrote to him, to care for 
her health. "Yesterday I received Jacquelin's let- 
ter of the 12*^* informing me that your health was at 
present much the same as when I left Richmond," 
writes Marshall.* "John [Marshall's son] passed 
through this city a day or two past, & although I 
did not see him I had the pleasure of hearing from 
Mr. Washington who saw him . . that you were as 
well as usual." • Li another letter Marshall says: 
"Do my dearest Polly let me hear from you through 
someone of those who will be willing to write for 
you." * Again he says: "I am most anxious to know 
how you do but no body is kind enough to gratify 
my wishes. . . I looked eagerly for a letter to day 
but no letter came. . . You must not fail when you 
go to Chiccahominy [Marshall's farm near Richmond] 

^ Accounts given Professor J. Franklin Jameson by old residents of 
Richmond, and by Professor Jameson to the author. 

< Marshall to his wife, Washington, Feb. 16, 1818, MS. 
' Same to same, March 12, 1826, MS. 

< Same to same, Feb. 19, 1829, MS. 



MARSHALL AND STORY 69 

. . to cany out blankets enough to keep you com- 
fortable. I am very desirous of hearing what is doing 
there but as no body is good enough to let me know 
how you do & what is passing at home I could not 
expect to hear what is passing at the farm." ^ Indeed, 
only one letter of Marshall's has been discovered 
which indicates that he had received so much as a 
line from his wife; and this was when, an old man of 
seventy-five, he was desperately ill in Philadelphia. ^ 
Nothing, perhaps, better reveals the sweetness of his 
nature than his cheerful temper and tender devotion 
under trying domestic conditions.' 

His "dearest Polly'' was intensely religious, andi 
Marshall profoundly respected this element of her 
character.* The evidence as to his own views and 
feelings on the subject of religion, although scanty, 
is definite. He was a Unitarian in belief and there-' 
fore never became a member of the Episcopal church,^ 
to which his parents, wife, children, and all other rel- 
atives belonged. But he attended services. Bishop 
Meade informs us, not only because " he was a sin- 
cere friend of religion," but also because he wished 

^ Marshall to his wife> Washingtx)!!, Jan. SO, 18S1, MS. 

* See tn/fo, chap. x. 

' Mrs. Marshall did not write to her children, it would seem. When 
be was in Richmond, the Chief Justice himself sent messages from her 
which were ordinary expressions of affection. 

**Your mother is very much gratified with the account you give 
from yourself and Claudia of all your affairs & especially of your 
children and hopes for its continuance. She looks with some impa- 
tience for similar information from John. She desires me to send her 
love to all the family including Miss Maria and to tdl you that this 
hot weather distresses her very much & she wishes you also to give 
her love to John & Elizabeth & their children.'* (Marshall to his son 
James K Marshall, Richmond, July 8, 1827, MS.) 

^ See vol. I, footnote to 189, of this work. 



70 JOHN MARSHALL 

"to set an example/' The Bishop bears this testi- 
mony: "I can never forget how he would prostrate 
his tall form before the rude low benches, without 
backs, at Coolspring Meeting-House,^ in the midst 
of his children and grandchildren and his old neigh- 
bors/' When in Richmond, Marshall attended the 
Monumental Church where, says Bishop Meade, "he 
was much inconmioded by the narrowness of the 
pews. . . Not finding room enough for his whole body 
within the pew, he used to take his seat nearest the 
door of the pew, and, throwing it open, let his legs 
stretch a little into the aisle/' * 

It is said, however, that his daughter, during her 
last iUness, declared that her father late in life was 
converted, by reading Keith on Prophecy, to a be- 
lief in the divinity of Christ; and that he deter- 
mined to " apply for admission to the communion of 
our Church . . but died without ever communing/' ' 
There is, too, a legend about an astonishing flash of 
eloquence from Marshall — "a streak of vivid light- 
ning" — at a tavern, on the subject of religion.* 
The impression said to have been made by Marshall 
on this occasion was heightened by his appearance 
when he arrived at the inn. The shafts of his ancient 
gig were broken and "held together by withes formed 
from the bark of a hickory sapling"; he was negli- 
gently dressed, his knee buckles loosened.^ 

In the tavern a discussion arose among some young 
men concerning "the merits of the Christian reli- 

^ In Leeds Parish, near Oakhill» Fauquier County. 

« Meade, n, 221-22. 

' Oreen Bag, vin, 487. 

* Howe, 275-76. • 76. 



MABSHALL AND STORY 71 

gion/* The debate grew warm and lasted "from six 
o'clock until eleven." No one knew Marshall, who 
sat quietly listening. Finally one of the youthful com- 
batants tmned to him and said : ** Well, my old gentle- 
man, what think you of these things?" Marshall 
responded with a '^most eloquent and unanswerable 
appeal." He talked for an hour, answering "every 
argument urged against " the teachings of Jesus. " In 
the whole lecture there was so much simplicity and 
energy, pathos and sublimity, that not another word 
was uttered." The listeners wondered who the old 
man could be. Some thought him a preacher; and 
great was their surprise when they learned after- 
wards that he was the Chief Justice of the United 
States. 1 

His devotion to his wife illustrates his attitude 
toward women in general, which was one of exalted 
reverence and admiration. "He was an enthusiast 
in r^ard to the domestic virtues," testifies Story. 
"There was . . a romantic chivalry in his feelings, 
which, though rarely displayed, except in the circle 
of his most intimate friends, would there pour out 
itself with the most touching tenderness." He loved 
to dwell on the "excellences," "accomplishments," 
"talents," and "virtues" of women, whom he looked 
upon as "the friends, the companions, and the 
equals of man." He tolerated no wit at their ex- 
pense, no fling, no sarcasm, no reproach. On no 
phase of Marshall's character does Story place so 

^ This story was originally published in the Winchester Republican. 
The incident is said to have occurred at McGuire's hotel in Win- 
chester. The newspaper account is reproduced in the Charleston 
(S.C.) edition (1S45) of Howe's book, 275-76. 



72 JOHN MARSHALL 

much emphasis as on his esteem for women.* Har- 
riet Martineau, too, bears witness that "he main- 
tained through life and carried to his grave, a rev- 
erence for woman as rare in its kind as in its degree." * 
"I have always believed that national character as 
well as happiness depends more on the female part 
of society than is generally imagined," writes Mar- 
shall in his ripe age to Thomas White.' 

Commenting on Story's account, in his centennial 
oration on the first settlement of Salem, of the death 
of Lady Arbella Johnson, Marshall expresses his 
opinion of women thus: "I almost envy the occasion 
her sufferings and premature death have furnished 
for bestowing that well-merited eulogy on a sex 
.which so far surpasses ours in all the amiable and 
attractive virtues of the heart, — in all those quali- 
ties which make up the sum of hiunan happiness and 
transform the domestic fireside into an elysium. I 
read the passage to my wife who expressed such ani- 
mated approbation of it as almost to excite fears for 
that exclusive admiration which husbands claim as 
their peculiar privilege Present my compliments to 
M" Story and say for me that a lady receives the 
highest compliment her husband can pay her when 
he expresses an exalted opinion of the sex, because 
the world will believe that it is formed on the model 
he sees at home." * 

Ten children were bom to John Marshall and 

^ Joseph Story in Dillon, m, 364-66. 

* Martineau: Retrospect of Western Traods^ i, 150. 

* North American Review, xx, 444-45. 

^ Marshall to Story, Oct. 29, 1828, Proceedings, MassackuseUs Hie- 
torical Society, 2d Series, toy, 887-88. 



MARSHALL AND STORY 73 

Mary Ambler, of whom six survived, five boys and 
one girl.^ By 1815 only three of these remamed at 
home; Jacquelin, twenty-eight years old, James 
Keith, fifteen, and Edward, ten years of age. John 
was in Harvard, where Marshall sent all his sons 
except Thomas, the eldest, who went to Princeton.* 
The daughter, Mary, Marshall's favorite child, had 
married Jacquelin B. Harvie and lived in Richmond 
not far from Marshall's house.* Four other children 
had died early. 

"You ask," Marshall writes Story, "if M" Mar- 
shall and myself have ever lost a child. We have 
lost four, three of them bidding fairer for health 
and life than any that have survived them. One, a 
daughter about six or seven . . was one of the most 
fascinating children I ever saw. She was followed 
within a fortnight by a brother whose death was at- 
tended by a circumstance we can never forget. 

" When the child was supposed to be dying I tore 
the distracted mother from the bedside. We soon 
afterwards heard a voice in the room which we con- 
sidered as indicating the death of the infant. We 
believed him to be dead. [I went] into the room and 
found him still breathing. I returned [and] as the 
pang of his death had been felt by his mother and 
[I] was confident he must die, I concealed his being 
alive and prevailed on her to take refuge with her 

^ Thomas, bom July 21, 1784; Jacquelin Ambler, bom December 
S, 1787; Mary, bom September 17, 1795; John, bom January 15, 1798; 
James Keith, bom February IS, 1800; Edward Carrington, bom 
January 13, 1805. (Pazton: MarshaU Family, Genealogical Chart) 

' Edward Carrington was the only son to receive the degree of 
A.B. irom Harvard (1826). 

> Fazton, 100. 



74 JOHN MARSHALL 

mother who lived the next door across an open 
square from her. 

"The child lived two days, during which I was 
agonized with its condition and with the occasional 
hope, though the case was desperate, that I might 
enrapture his mother with the intelligence of his 
restoration to us. After the event had taken place 
his mother could not bear to return to the house she 
had left and remained with her mother a fortnight. 

"I then addressed to her a letter in verse in which 
our mutual loss was deplored, our lost children 
spoken of with the parental feeling which belonged 
to the occasion, her affection for those which sur- 
vived was appealed to, and her religious confidence 
in the wisdom and goodness of Providence excited. 
The letter closed with a pressing invitation to return 
to me and her children.'* ^ 

All of Marshall's sons married, settled on various 
parts of the Fairfax estate, and lived as country 
gentlemen. Thomas was given the old homestead at 
Oak Hill, and there the Chief Justice built for his 
eldest son the large house adjacent to the old one 
where he himself had spent a year before joining the 
army under Washington.* To this spot Marshall 
went every year, visiting Thomas and his other sons 
who lived not far apart, seeing old friends, wander- 
ing along Goose Creek, over the mountains, and 
among the haimts where his first years were spent. 

Here, of course, he was, in bearing and appearance, 
even less the head of the Nation's Judiciary than he 

^ Marshall to Story, June 26, 1831» Proceedings, Maes. Hist. Soc 
2d Series, xiv, 844-46. 

* See voL i> 55-56» of this work. 



MARSHALL AND STORY 75 

was in Richmond or on the road to Raleigh. He was 
emphatically one of the people among whom he so- 
journed, familiar, interested, considerate, kindly and 
sociable to the last degree. Not one of his sons but 
showed more consciousness of his own importance 
than did John Marshall; not a planter of Fauquier, 
Warren, and Shenandoah Coimties, no matter how 
poorly circumstanced, looked and acted less a Chief 
Justice of the United States. These characteristics, 
together with a peculiar generosity, made Marshall 
the most beloved man in Northern Virginia. 

Once, when going from Richmond to Fauquier 
County, he overtook one of his Revolutionary com- 
rades. As the two rode on together, talking of their 
war-time experiences and of their present circum- 
stances, it came out that this now ageing friend of 
his youth was deeply in debt and about to lose all 
his possessions. There was, it appeared, a mortgage 
on his farm which would soon be foreclosed. After 
the Chief Justice had left the inn where they both 
had stopped for refreshments, an envelope was 
handed to his friend containing Marshall's check for 
the amoimt of the debt. His old comrade-in-arms 
quickly mounted his horse, overtook Marshall, and 
insisted upon returning the check. Marshall refused 
to take it back, and the two friends argued the mat- 
ter, which was finally compromised by Marshall's 
agreeing to take a lien upon the land. But this he 
never foreclosed.^ 

This anecdote is highly characteristic of Mar- 
shall. He was infinitely kind, infinitely considerate. 

i Howe (Charleston, S.C., ed. of 1845), 266. 



76 JOHN MABSHALL 

Bishop Meade, who knew him well, says that he 
*^was a most conscientious man in regard to some 
things which others might regard as too trivial to 
be observed/' On one of Meade's frequent journeys 
with Marshall between Fauquier County and the 
"lower country," they came to an impassable 
stretch of road. Other travelers had taken down a 
fence and gone through the adjoining plantation, 
and the Bishop was about to follow the same 
route. Marshall refused — "He said we had better 
go around, although each step was a plunge, adding 
that it was his duty, as one in oflSce, to be very par- 
ticular in regard to such things." ^ 

When in Richmond the one sport in which he de- 
lighted was the pitching of quoits. Not when a law- 
yer was he a more enthusiastic or regular attendant 
of the meetings of the Quoit Club, or Barbecue Club,* 
imder the trees at Buchanan's Spring on the out- 
skirts of Richmond, than he was when at the height 
of his fame as Chief Justice of the United States. 
More personal descriptions of Marshall at these 
gatherings have come down to us than exist for any 
other phase of his life. Chester Harding, the artist, 
when painting Marshall's portrait during the summer 
of 1826, spent some time in the Virginia Capital, and 
attended one of the meetings of the Quoit Club. It 
was a warm day, and presently Marshall, then in 
his seventy-second year, was seen coming, his coat 
on his arm, fanning himself with his hat. Walk- 
ing straight up to a bowl of mint julep, he poured a 

^ Meade, n, 222. 

< Tyler: Tyler, i, 220; and see vol. n, 182-83, of this work. 



MABSHALL AND STORY 77 

tumbler full of the liquid, drank it off, said, " How 
are you, gentlemen? " and fell to pitching quoits with 
inmiense enthusiasm. When he won, says Hard- 
ing, "the woods would ring with his triumphant 
shout." 1 

James K. Paulding went to Richmond for the 
purpose of talking to the Chief Justice and observ- 
ing his daily life. He was more impressed by Mar- 
shall's gayety and unrestraint at the Quoit Club 
than by anything else he noted. " The Chief -Justice 
threw off his coat,*' relates Paulding, " and fell to work 
with as much energy as he would have directed to 
the decision of . . the conflicting jurisdiction of the 
General and State Governments.*' Dming the game 
a dispute arose between two players "as to the quoit 
nearest the meg." Marshall was agreed upon as um- 
pire. "The Judge bent down on one knee and with 
a straw essayed the decision of this important ques- 
tion, . . frequently biting off the end of the straw" 
for greater accuracy.* 

The morning play over, the club dinner followed. 
A fat pig, roasted over a pit of coals, cold meats, 
melons, fruits, and vegetables, were served in the old 
Virginia style. The usual drinks were porter, toddy,' 
and the club punch made of "lemons, brandy, rum, 
madeira, poured into a bowl one-third fifled with ice 

1 White: A Sketch of Chester Harding, Artist, 195-96. 

* Lippinoott*s Magazine, n, 624. Paulding makes this comment 
on Miu^hall: ''In his hours of relaxation he was as full of fun and as 
natural as a child. He entered into the spirit of athletic exercises with 
the ardor oi youth; and at sixty-odd years of age was one of the best 
quoit-players in Virginia." {lb, 6{W.) 

' American Turf Register and Sporting Magazine (18^), i> 41-42; 
and see Mordecai, 18S-89. 



78 JOHN MABSHALL 

(no water), and sweetened/' ^ In addition, cham- 
pagne and other wines were sometimes provided.* 
At these meals none of the witty company equaled 
Marshall in fun-making; no laugh was so cheery and 
loud as his. Not more was John Marshall the chief 
of the accomplished and able men who sat with him 
on the Supreme Bench at Washington than, even in 
his advancing years, he was the leader of the conviv- 
ial spirits who gathered to pitch quoits, drink julep 
and punch, tell stories, sing songs, make speeches, 
and play pranks under the trees of Richmond. 

Marshall dearly loved, when at home, to indulge in 
^the giving of big dinners to members of the bench 
and bar. In a wholly personal sense he was the best- 
liked man in Richmond. The lawyers and judges 
living there were particularly fond of him, and the 
Chief Justice thoroughly reciprocated their regard. 
Spencer Roane, Judge of the Virginia Court of Ap- 
peals, seems to have been the one enemy Marshall 
had in the whole city. Indeed, Roane and Jefferson 
appear to have been the only men anywhere who 
.ever hated him personally. Even the testy George 
Hay reluctantly yielded to his engaging qualities. 
When at the head of the Virginia bar, Marshall had 
been one of those leading attorneys who gave the at- 
tractive dinners that were so notable and delightful 
a f eatiu« of life in Richmond. After he became Chief 
Justice, he continued this custom until his "lawyer 
dinners" became, among men, the principal social 
events of the place. 

^ Recipe for the Quoit Club punch, Oreen Bag, vm, 482. This re- 
cipe was used for many years by the Richmond Light Infantry Blues. 
' See vol. n, 188, of this work. 



MARSHATTi AND STORY 79 

Many guests sat at Marshall's board upon these 
occasions. Among them were his own sons as well as 
those of some of his guests. These dinners were 
repetitions within doors of the Quoit Club entertain- 
ments, except that the food was more abundant 
and varied, and the cheering drinks were of better 
quality — for Marshall prided himself on this fea- 
ture of hospitality, especially on his madeira, of 
which he was said to keep the best to be had in 
America. Wit and repartee, joke, story and song, 
speech and raillery, brought forth volleys of laugh- 
ter and roars of applause until far into the morning 
hours. ^ Marshall was not only at the head of the 
table as host, but was the leader of the merriment.^ 

His labors as Chief Justice did not dull his delight 
in the reading of poetry and fiction, which was so 
keen in his earlier years.' At the siunmit of his ca- 
reer, when seventy-one years old, he read all of Jane 
Austen's works, and playfully reproved Story for 
failing to name her in a list of authors given in his 
Phi Beta Kappa oration at Harvard. ^'I was a little 
mortified," he wrote Story, "to find that you had 
not admitted the name of Miss Austen into yoiur 
list of favorites. I had just finished reading her nov- 
els when I received your discourse, and was so much 
pleased with them that I looked in it for her name, 
and was rather disappointed at not finding it. Her 
flights are not lofty, she does not soar on eagle's 
wings, but she is pleasing, interesting, equable, and 

^ Qa these occasions Mrs. Marshall spent the nights at the house 
of her daughter or sister. 

* For an extended description of Marshall's ''lawyer dinners*' see 
Terhune, 85-^7. * See vd. i, 44-45> 153-54, of this work. 



80 JOHN MARSHALL 

yet amusing. I count on your making some apology 
for this omission." ^ 

Story himself wrote poetry, and Marshall often 
asked for copies of his verses.* "The plan of life I 
had formed for myself to be adopted after my re- 
.tirement from oflSce," he tells Story, "is to read 
nothing but novels and poetry/' * That this state- 
ment genuinely expressed his tastes is supported 
by the fact that, among the few books which the 
Chief Justice treasured, were the novels of Sir Wal- 
ter Scott and an extensive edition of the British 
poets.* While his chief intellectual pleasure was 
the reading of fiction, Marshall liked poetry even 
better; and he conunitted to memory favorite pas- 
sages which he quoted as comment on passing inci- 
dents. Once when he was told that certain men had 
changed their opinions as a matter of political ex- 
pediency, he repeated Homer's lines: 

'* Ye gods, what havoc does ambition make 
'Mong all your works." * 

During the six or eight weeks that the Supreme 
Court sat each year, Marshall was the same in man- 
ner and appearance in Washington as he was among 
his neighbors in Richmond — the same in dress, in 
habits, in every way. Once a practitioner sent his 
little son to Marshall's quarters for some legal papers. 
The boy was in awe of the great man. But the Chief 
Justice, detecting the feelings of the lad, remarked : 

^ Marshall to Story, Nov. 26, 1826, Story, i, 506. 

3 Story to his wife, Feb. 26, 1882, t&. n, 84. 

' Marshall to Story, Sept. SO, 1829, Proceedings, Mass. HiH. 8oe. 
2d Series, xiv, 841. 

^ Statement of Miss Elizabeth Marshall of Leeds Manor to the 
author. * Meade, i, footnote to 99. 



MARSHALL AND STORY 81 

^Billy, I believe I can beat you playing marbles; 
come into the yard and we will have a game/' Soon 
the Chief Justice of the United States and the ur- 
diin were hard at play.^ 

K he reached the court-room before the hour of 
convening court, he sat among the lawyers and 
talked and joked as if he were one of them; * and, 
judging from his homely, neglected clothing, an un- 
informed onlooker would have taken him for the 
least important of the company. Yet there was 
about him an imconscious dignity that prevented 
any from presuming upon his good nature, for Mar- 
shall inspired respect as well as affection. After 
their surprise and disappointment at his ill attire 
and want of impressiveness,^ attorneys coming in 
contact with him were unfailingly captivated by his 
simplicity and charm. 

It was thus that Joseph Story, when a very young 
lawyer, first fell imder Marshall's spell. " I love his 
laugh,*' he wrote; "it is too hearty for an intriguer, 
— and his good temper and unwearied patience are 
equally agreeable on the bench and in the study." * 
And Marshall wore well. The longer and more in-i 
timately men associated with him, the greater their 
fondness for him. " I am in love with his character, 
positively in love," wrote Story after twenty-four 

1 Wodd^s Work, i, 8d5. 

* Gustavus Schmidt in Xcmrnona Law Journal (1841), i. No. 1, 85- 
86. Mr. Schmidt's description is of Marshall in the court-room at 
Richmond when holding the United States Circuit Court at that place. 
TkkDOTf Story, and others show that the same was true in Washing- 
ton. 

< Quincy : Figures qf the Past, 242-48. 

* Story to Fay, Feb. 25, 1808, Story, i, 166-67. 



82 JOHN MABSHATTi 

years of dose and familiar contact.^ He "rises . . 
with the nearest survey/' again testified Story in a 
magazine article.^ 

When, however, the time came for him to open 
court, a transformation came over him. Clad in the 
robes of his great office, with the Associate Justices 
on either side of him, no king on a throne ever ap- 
peared more majestic than did John Marshall. The 
kindly look was still in his eye, the mildness still in 
his tones, the benignity in his features. But a grav- 
ity of bearing, a firmness of manner, a concentration 
and intentness of mind, seemed literally to take pos- 
session of the man, although he was, and appeared 
to be, as unconscious of the change as he was that 
there was anything unusual in his conduct when off 
the bench.' 

Marshall said and did things that interested other 
people and caused them to talk about him. He was 
noted for his quick wit, and the bar was fond of re- 
peating anecdotes about him. " Did you hear what 
the Chief Justice said the other day?" — and then 
the story would be told of a bright saying, a quick 
repartee, a picturesque incident. Chief Justice Gib- 
son of Pennsylvania, when a young man, went to 
Marshall for advice as to whether he should accept 
a position offered him on the State Bench. The 
young attorney, thinking to flatter him, remarked 
that the Chief Justice had "reached the acme of 
judicial distinction.'* "Let me tell you what that 

1 Story to Martmeau, Oct. 8, 1885, Story, n, 205. 
* Ih. I, 5«2. 

' Gustavus Schmidt in Louisiana Law Journal (1841), i. No. 1» 
85-86. 



MAESHALL AND STORY 8S 

means, young man/' broke in Marshall. "The acme 
of judicial distinction means the ability to look a 
lawyer straight in the eyes for two hours and not 
hear a damned word he says/' ^ 

Wherever he happened to be, nothing pleased 
Marshall so much as to join a convivial party at din- 
ner or to attend any sort of informal social gather- 
ing. On one occasion he went to the meeting of a 
dub at Philadelphia, held in a room at a tavern 
across the hall from the bar. It was a rule of the dub 
that every one present should make a rhyme upon 
a word suddenly given. As he entered, the Chief 
Justice observed two or three Kentucky colonels 
taking their accustomed drink. When Marshall ap- 
peared in the adjoining room, where the company 
was gathered, he was asked for an extemporaneous 
rhyme on the word "paradox.*' Looking across the 
hall, he quickly answered: 

** In the Blue Grass region, 
A ' Paradox ' was bom. 
The com was full of kemds 

And the * colonels * full of com."^ 

But Marshall heartily disliked the formal society 
of the National Capital. He was, of course, often in- 
vited to dinners and receptions, but he was usually 
bored by their formality. Occasionally he would 
brighten his letters to his wife by short mention of 
some entertainment. "Since being in this place,*' 

^ Belated to the author by Mr. Sussex D. Davis of the Philadelphia 
bar. 

' Belated to the author by Thomas Marshall Smith of Baltimore, 
a descendant of Marshall. Mr. Smith says that this story has been 
handed down through three generations of his family. 



84 JOHN MARSHALL 

he writes her, " I have been more in company than I 
wish. • • I have been invited to dine with the Presi- 
dent with our own secretaries & with the minister of 
France & tomorrow I dine with the British minister. 
. . In the midst of these gay circles my mind is 
carried to my own fireside & to my beloved wife.'* ^ 
Again: "Soon after dinner yesterday the French 
Charg6 d'affaires called upon us with a pressing in- 
vitation to be present at a party given to the young 
couple, a gentleman of the French legation & the 
daughter of the secretary of the navy who are lately 
married. There was a most brilliant illumination 
which we saw and admired, & then we returned." * 
Of a dmner at the French Legation he writes his 
wife, it was "rather a dull party. Neither the minis- 
ter nor his lady could speak English and I could 
not speak French. You may conjecture how far we 
were from being sociable. Yesterday I dined with 
M' Van Buren the secretary of State. It was a 
grand dinner and the secretary was very polite, but 
I was rather dull through the evening. I make a poor 
return for these dinners. I go to them with reluc- 
tance and am bad company while there. I hope we 
have seen the last, but I fear we must encounter one 
more.* With the exception of these parties my time 
was never passed with more uniformity. I rise early, 
pour [sic] over law cases, go to court and return at 

1 MarshaU to his wife, Feb. 14, 1817, MS. 

* Same to same, Jan. 4, 1823, MS. 

' For excellent descriptions of Washington society during Marshall's 
period see the letters of Moss Kent, then a Representative in Congress. 
These MSS. are in the Library of Congress. Also see Story to his wife^ 
Feb. 7, 1810, Story, i, 196. 



MARSHALL AND STORY 86 

the same hour and pass the evening in consultation 
with the Judges/' ^ 

Chester Harding relates that, when he was in 
Washington making a full-length portrait of the 
Chief Justice,* Marshall arrived late for the sitting, 
which had been fixed for eight o'clock in the evening. 
He came without a hat. Congressman Storrs and 
one or two other men, having seen Marshall, bare- 
headed, hurrying by their inn with long strides, had 
"followed, curious to know the cause of such a strange 
appearance." But Marshall simply explained to the 
artist that the consultation lasted longer than usual, 
and that he had hurried off without his hat. When the 
Chief Justice was about to go home, Harding offered 
him a hat, but he said, " Oh, no ! it is a warm night, 
I shall not need one.'' ' 

No attorney practicing -in the Supreme Court was 
more imreserved in social conversation than was the 
Chief Justice. Sometimes, indeed, on a subject that 
appealed to him, Marshall would do all the talking, 
which, for some reason, would occasionally be quite 
beyond the understanding of his hearer. Of one such 
exhibition Fisher Ames remarked to Samuel Dexter: 
" I have not understood a word of his argument for 

1 Marshall to his wife, Jan. 80, 1831, MS. 

* This was painted for the Boston Athensetun. See frontispiece in 
vol. m. The other portrait by Harding, painted in Richmond (see 
tttpro, 76), was given to Story who presented it to the Harvard Law 
School. 

> White: Sketch cf Chester Harding, 194-96. 

For the Chief Justice to lose or forget articles of clothing was noth- 
ing unusual. "He lost a coat, when he dined at the Secretary of the 
Navy's," writes Story who had been making a search for Marshall's 
missing garment. (Story to Webster, Maich 18, 18128, Story MSS. 
Mass. Hist Soc) 



86 JOHN MABSHALL 

half an hour/' "And I," relied the leader of the 
Massachusetts bar, " have been out of my depth for 
an hour and a half/' ^ 

The members of the Supreme Court made life as 
pleasant for themselves as they could diuing the 
weeks they were compelled to remain in "this dis- 
mal " place, as Daniel Webster described the National 
Capital. Marshall and the Associate Justices all 
lived together at one boarding-house, and thus be- 
came a sort of family. " We live very harmoniously 
and familiarly, " * writes Story, one year after his 
appointment. "My brethren are very interesting 
men," he tells another friend. We "live in the most 
frank and unaffected intimapy. Indeed, we are all 
imited as one, with a mutual esteem which makes 
even the labors of Jurisprudence light." ^ 

Sitting about a single table at their meals, or gath- 
ered in the room of one of them, these men talked 
over the cases before them. Not only did they 
* * moot every question as " the arguments proceeded in 
court, but by "familiar conferences at our lodgings 
often come to a very quick, and . . accurate opinion, 
in a few hours," relates that faithful chronicler of 
their daily life, Joseph Story.* Story appears to 
have been even more impressed by the comradery 
of the members of the Supreme Court than by the 
diflSculty of the cases they had to decide. 
< None of them ever took his wife with him to Wash- 
ington, and this fact naturally made the personal 
relations of the Justices peculiarly dose. "The 

1 Story, n, 504-05. « Story to Wflliams, Feb. 16, 1812, ». i, 214 
• Story to Fay, Feb. 24, 1812, i6. 215. < lb. 



MABSHALL AND STORY 87 

Judges here live with perfect hannony/' Story 
reiterates, "and as agreeably as absence from 
friends and from families could make our residence. 
Our intercoiu*se is perfectly familiar and uncon- 
strained, and our social hours when undisturbed with 
the labors of law, are passed in gay and frank con- 
versation, which at once enlivens and instructs/' ^ 

This "gay and frank conversation** of Marshall 
and his associates covered every subject — the 
methods, manners, and even dress of counsel who 
argued before them, the fortunes of public men, the 
trend of i>olitics, the incident of the day, the gossip 
of society. "Two of the Judges are widowers,*' re- 
cords Story, "and of course objects of considerable 
attraction among the ladies of the city. We have 
fine sport at their expense, and amuse our leisure 
with some touches at match-making. We have al- 
ready ensnared one of the Judges, and he is now (at 
the age of forty-seven) violently affected with the 
tender passion.** * 

Thus Marshall, in his relation with his fellow oc- 
cupants of the bench, was at the head of a family as 
much as he was Chief of a court. Although the dis- 
cussion of legal questions occurred continuously at 
the boarding-house, each case was much more fully 
examined in the consultation room at the Capitol. 
There the court had a regular "consultation day" 
devoted exclusively to the cases in hand. Yet, even 
on these occasions, all was informality, and wit and 
humor brightened the tediousness. These "consul- 

^ Story to hifl wife, March 5, 1812, Story, i, 217. 
* Same to same, March 1£, 1812, ib. 219. 



88 JOHN MARSHALL 

tations" lasted throughout the day and sometimes 
into the night; and the Justices took their meals 
while the discussions proceeded. Amusing incidents, 
some true, some false, and others a mixture, were re- 
lated of these judicial meetings. One such story 
went the rounds of the bar and outlived the period 
of Marshall's life. 

! "We are great ascetics, and even deny ourselves 
wine except in wet weather,'* Story dutifully in* 
formed his wife. " What I say about the wine gives 
you our rule; but it does sometimes happen that the 
Chief Justice will say to me, when the doth is re- 
moved, * Brother Story, step to the window and see 
if it does not look like rain/ And if I tell him that 
the sun is shining brightly. Judge Marshall will some- 
times reply, *A11 the better, for our jurisdiction ex- 
tends over so large a territory that the doctrine of 
chances makes it certain that it must be raining 
somewhere.'" ^ 

When, as sometimes happened, one of the Asso-. 
ciate Justices displeased a member of the bar, Mar- 
shall would soothe the wounded feelings of the law- 
yer. Story once offended Littleton W. Tazewell of 
Virginia by something said from the bench. "On 
my return from court yesterday," the Chief Justice 
hastened to write the irritated Virginian, "I in- 
formed M' Story that you had been much hurt at an 
expression used in the opinion he had delivered in the 
case of the Palmyra. He expressed equal siuprize 
and regret on the occasion, and declared that the 

^ Magazine cf American History, xn, 69; and see Quincy: Figvree 
cf the Past, 189-90. This tale, gathering picturesqueness as it waa 
passed by word of mouth during many years, had its variations. 



MARSHALL AND STORY 89 

words which had given offense were not used or un- 
derstood by him in an offensive sense. He assented 
without hesitation to such modification of them as 
would render them in your view entirely unexcep- 
tionable." ^ 

As Chief Justice, Marshall shrank from publicity, 
while printed adulation aggravated him. '' I hope to 
God they will let me alone 'till I am dead," he ex- 
claimed, when he had reached that eminence where 
writers sought to portray his life and character.^ 

He did, however, appreciate the recognition given 
from time to time by colleges and learned societies. 
In 1802 Princeton conferred upon him the honorary 
d^ree of LL.D. ; in 1806 he received the same degree 
from Harvard and from the University of Pennsyl- 
vania in 1815. In 1809, as we have seen, he was 
elected a corresponding member of the Massachu- 
setts Historical Society; on January 24, 1804, he 
was made a member of the American Academy of 
Arts and Sciences; and, in 1880, was elected to the 
American Philosophical Society. All these honors 
Marshall valued highly. 

This, then, was the man who presided over the 
Supreme Court of the United States when the deci- 
sions of that tribunal developed the National powers 
of the Constitution and gave stability to our Na- 
tional life* His control of the court was made so 
easy for the Justices that they never resented it; 
often, perhaps, they did not realize it. The influence 
of his strong, deep, clear mind was powerfully aided 

1 Marshall to Tazewell, Jan. 20, 1827, MS. 
* Wirt to Delaplaine, Nov. 5» 1818, Kennedy: Memoirs qf the Life 
rfWmumWiH,n»S5. 



90 JOHN MARSHALL 

by his engaging personality. To agree with him was 
a pleasure. 

Marshall's charm was as great as his intellect; he 
was never irritable; his placidity was seldom ruflBed; 
not often was his good nature distm'bed. His "great 
suavity, or rather cahnness of manner, cannot read- 
ily be conceived/' testifies George Bancroft*^ The 
sheer magnitude of his views was, in itself, captivat- 
ing, and his supremely lucid reasoning removed the 
confusion which more complex and subtle minds 
would have created in reaching the same conclusion. 
The elements of his mind and character were such, 
and were so combined, that it was both hard and un- 
pleasant to differ with him, and both easy and agree- 
able to follow his lead. 

Above all other influences upon his associates on 
the bench, and, indeed, upon everybody who knew 
him, was the sense of trustworthiness, honor, and 
1 uprightness he inspired.' Perhaps no pubUc man 
ever stood higher in the esteem of his contempora- 
ries for noble personal qualities than did John Mar- 
shall. 

When reviewing his constructive work and mar- 
veling at his influence over his judicial associates, 
we must recall, even at the risk of iteration, the 
figure revealed by his daily life and habits — "a 
man who is tall to awkwardness, with a large head of 

^ Bancroft to his wife, Jan. 28, 1882, Howe: lAfe and LeUera of 
George Bancroft, i, 202. 

' Even Jefferson, in bis bitterest attacks, never intimated anything 
against Marshall's integrity; and Spencer Roane, when assailing with 
great violence the opinion of the Chief Justice in M'Culloch m. Mary- 
land (see infraf chap, vi), paid a high tribute to the purity of his 
personal character. 



MARSHALL AND STORY 91 

ft 

hair, which looked as if it had not been lately tied or 
combed, and with dirty boots,'* ^ a body that seemed 
"without proportion," and arms and legs that 
"dangled from each other and looked half dislo- 
cated,'* dressed in clothes apparently "gotten from 
some antiquated slop-shop of second-hand raiment 
. . the coat and breeches cut for nobody in par- 
ticular." * But we must also think of such a man 
as possessed of "style and tones in conversation 
uncommonly mild, gentle, and conciliating." ' We 
must think of his hearty laughter, his "impertur- 
bable temper," * his shyness with strangers, his quaint 
humor, his hflarious unreserve with friends and con- 
vivial jocularity when with intimates, his cordial 
warm-heartedness, unassuming simplicity and sin- 
cere gentleness to all who came in contact with him 
— a man without "an atom of gaU in his whole 
composition." * We must picture this distinctive 
American character among his associates of the 
bench in the Washington boarding-house no less than 
in court, his luminous mind guiding them, his irre- 
sistible personality drawing from them a real and 
lasting afiFection. We must bear in mind the trust 
and confidence which so powerfully impressed those 
who knew the man. We must imagine a person very 
much like Abraham Lincoln. 

^ Ticknor to his father, Feb. 1, 1815, Tkknor: Uie^ Letters^ and 
Journals cf Oeorge Tieknor, i, SS. 

* Description from personal observation, as quoted in Van Sant- 
voord : Lives and Judicial Services of the Chief Justices^ footnote to 368. 

' Ticknor to his father, as cited in note 1, supra. 

* Memoirs cf John Quincy Adams: Adams, ix, 248. 

> Wirt to Carr, Dec 80, 1827, Kennedy, 240. For Story's estimate 
of Marshall's personality see Dillon, m, 868-66. 



92 JOHN MABSHALL 

Indeed, the resemblance of Marshall to Lincoln 
\ is striking. Between no two men in American his- 
tory is there such a likeness. Physically, intellec- 
tually, and in characteristics, Marshall and Lin- 
coln were of the same type. Both were very tall 
men, slender, loose-jointed, and awkward, but 
powerful and athletic; and both fond of sport. So 
alike were they, and so identical in their negli- 
gence of dress and their total unconsciousness of, 
or indiflference to, convention, that the two men, 
walking side by side, might well have been taken 
for brothers. 

Both Marshall and Lincoln loved companionship 
with the same heartiness, and both had the same 
social qualities. They enjoyed fun, jokes, laughter, 
in equal measure, and had the same keen apprecia- 
tion of wit and humor. Their mental qualities were 
the same. Each man had the gift of going directly 
to the heart of any subject; while the same lucidity 
of statement marked each of them. Their style, the 
simpUcity of their language, the peculiar clearness 
of their logic, were almost identical. Notwith- 
standing their straightforwardness and amplitude of 
mind, both had a curious subtlety. Some of Mar- 
shall's opinions and Lincoln's state papers might 
have been written by the same man. The " Free- 
holder '^ questions and answers in Marshall's con- 
gressional campaign, and those of Lincoln's debate 
with Douglas, are strikingly similar in method and 
expression. 
\ Each had a genius for managing men; and Mar- 
shall showed the precise traits in dealing with the 



MABSHALL AND STORY 98 

members of the Supreme Court that Lincohi dis- 
played in the Cabinet. 

Both were bom in the South, each on the eve of a, 
great epoch in American history when a new spiritl 
was awakening in the hearts of the people. Although 
Southern-bom, both Marshall and Lincoln sympa- 
thized with and believed in the North; and yet their 
manners and instinct were always those of the South. 
Marshall was given advantages that Lincoln never 
had; but both were men of the people, were brought 
up among them, and knew them thoroughly. Lin- 
coln's outlook upon life, however, was that of the 
humblest citizen; Marshall's that of the well-placed 
and prosperous. Neither was well educated, but 
each acquired, in different ways, a command of ex- . 
eellent English and broad, plain conceptions of gov- 
ernment and of life. Neither was a learned man, 
but both created the materials for learning. 

Marshall and Lincoln were equally good politi- 
cians; but, although both were conservative in their 
mental processes, Marshall lost faith in the people's 
steadiness, moderation, and self-restraint; and came 
to think that impulse rather than wisdom was too 
often the temporary moving power in the popular 
mind, while the confidence of Lincoln in the good 
sense, righteousness, and self-control of the people 
became greater as his life advanced. If, with these 
distinctions, Abraham Lincoln were, in imagination, 
placed upon the Supreme Bench during the period 
we are now considering, we should have a good idea 
of John Marshall, the Chief Justice of the United 
Stotes. 



94 JOHN MABSHALL 

It is, then, largely the personality of John Mar- 
shall that explains the hold, as firm and persistent as 
it was gentle and soothing, maintained by him upon 
the Associate Justices of the Supreme Court; and it is 
this, too, that enables us to understand his immense 
popularity with the bar — a fact only second in im- 
portance to the work he had to do, and to his influ- 
ence upon the men who sat with him on the bench. 

For the lawyers who practiced before the Supreme 
Court at this period were most helpful to Mar- 
shall.^ Many of them were men of wide and accurate 
learning, and nearly all of them were of the first or- 
der of ability. No stronger or more brilliant bar ever 
was arrayed before any bench than that which dis- 
played its wealth of intellect and resources to Mar- 
shall and his associates.^ This assertion is strong, 
but wholly justified. Oratory of the finest quality, 
though of the old rhetorical kind, filled the coiu^- 
room with admiring spectators, and entertained 
Marshall and the other Justices, as much as the solid 
reasoning illuminated their minds, and the exhaus- 
tive learning informed them. 

^ '' He was solicitous to hear arguments, and not to decide causes 
without hearing them. And no judge ever profited more by them. No 
matter whether the subject was new or old; familiar to his thoughts 
or remote from them; buried under a mass of obsolete learning, or 
developed for the first time yesterday — whatever was its nature, 
he courted argument, nay, he demanded it.'* (Story in Dillon, m, 
ST7; and see voL n, 177-80, of this work.) 

* See Story's description of Harper, Duponceau, Rawle, Dallas, In- 
gersoU, Lee, and Martin (Story to Fay, Feb. 16, 1808, Story, i, 162-64) ; 
and of Pinkney {notes supra); aiaoseeVfaiven: History qf the American 
Bar, 257-68. We must remember, too, that Webster, Hopkinson, Em- 
met, Wirt, Ogden, Clay, and others of equal ability and accomplish- 
ments, practiced before the Supreme Court when Mft'y^ftll was Chief 
Justice. 



MABSHALL AND STORY 95 

Marshall encouraged extended arguments; often 
demanded them. Frequently a single lawyer would 
speak for two or three days. No lunit of time was 
put upon counsel.^ Their reputation as speakers 
as well as their fame as lawyers, together with the 
throngs of auditors always present, put them on their 
mettle. Rhetoric adorned logic; often encumbered it. 
A conflict between such men as WiUiam Pinkney, 
Luther Martin of Maryland, Samuel Dexter of 
Massachusetts, Thomas Addis Emmet of New York, 
WiUiam Wirt of Virginia, Joseph Hopkinson of Penn- 
sylvania, Jeremiah Mason of New Hampshire, Dan- 
iel Webster, Henry Clay, and others of scarcely less 
distinction, was, in itself, an event. These men, and 
indeed all the members of the bar, were Marshall's 
friends as well as admirers. 

The appointment of Story to the Supreme Bench 
was, like the other determining circumstances in 
Marshall's career, providential. 

Few characters in American history are more 
attractive than the New England lawyer and pub- 
licist who, at the age of thirty-two, took his place 
at Marshall's side on the Supreme Bench. Hand- 

^ Story relates that a single case was argued for nine days. (Story 
to Fay, Feb. 16, 1808, Story, i, 162.) 

In the Charlestown Bridge case, argued in 1831, the opening counsel 
on each side occupied three days. (Story to Ashmun, March 10, 1881, 
f&. n, 51.) 

Four years later Story writes: "We have now a case . . which has 
been under argument eight days, and will probably occupy five more.'' 
(Story to Fay, March 2, 1835, ib. 193.) 

In the lower courts the arguments were even longer. **This is the 
fourteenth day since this argument was opened. Pinkney . . promised 
to speak only two hours and a half. He has now spoken two days, and 
is, at this moment, at it again for the third day." (Wirt to his wif e» 
April 7, 18iei, Kennedy, n, 119.) 



06 JOHN MARSHALL ^ 

some, vivacious, impressionable, his mind was a 
storehouse of knowledge, accurately measured and 
systematically arranged. He read everything, for- 
got nothing. His mental appetite was voracious, and 
he had a very passion for research. His industry was 
untiring, his memory unfailing. He supplied exactly 
the accomplishment and toilsomeness that Marshall 
lacked. So perfectly did the qualities and attain- 
ments of these two men supplement one another 
that, in the work of building the American Nation, 
Marshall and Story may be considered one and the 
same person. 

Where Marshall was leisurely. Story was eager. 
If the attainments of the Chief Justice were not 
profuse, those of his yoimg associate were opulent. 
Marshall detested the labor of investigating legal 
authorities; Story delighted in it. The intellect of the 
older man was more massive and sure; but that of 
the youthful Justice was not far inferior in strength, 
or much less clear and direct in its operation. Mar- 
shall steadied Story while Story enriched Marshall. 
Each admired the other, and between them grew an 
afiFection like that of father and son. 

Story's father, Elisha Story, was a memfoa*of the 
Republican Party, a rare person among wealthy and 
educated men in Massachusetts at the time Jeffer- 
son founded that political organization. The son 
tells us that he ^* naturally imbibed the same opin- 
ions," which were so reprobated that not "more than 
four or five lawyers in the whole state . . dared avow 
themselves republicans. The very name was odious.*' ^ 

* Story, I, 96. 



MABSHALL AND STORY 97 

Joseph Story was Both in Marfolehead, Massachu- 
setts, September 18, 1779, one of a family of eighteen 
diildren, sevai by a first wife and eleven by a second. 
He was the eldest son of the second wife, who had 
been a Miss Pedrick, the daughter of a rich mer- 
chant and diipowner.^ 

No young member of the Massachusetts bar 
equaled Joseph Story in intellectual gifts and ac- 
quirements. He was a graduate of Harvard, and few 
men anywhere had a broader or more accurate educa- 
tion. His personality was winning and full dp charm. 
Yet, when he began practice at Salem, he was ^'per- 
secuted" with "extreme . . virulence '* because of his. 
political opinions.^ He became so depressed by what' 
he calls " the petty prejudices and sullen coolness of 
New England, . . bigoted in opinion and satisfied in 
forms," where Federalism had "persecuted . . [him] 
imrdentingly for • . [his] political principles," that 
he thought seriously of going to Baltimore to live 
and practice his profession. He made headway, 
however, in spite of opposition; and, when the grow- 
ing Republican Party, "the whole" of which he says 
were his "warm advocates,"' secured the majority 
of his district. Story was sent to Congress. "I was 
• . of course a supporter of the administration of 
Mr. Jefferson and Mr. Madison," although not "a 

^ Story» I, 2. EUsha Story is said to have been one of the *'In- 
diaos'* who threw overboard the tea at Boston; and he fought at 
Lexington. When the Revolution got under way, he entered the 
American Army as a surgeon and served for about two years, when 
he resigned because of his disgust with the management of the med- 
ical department. {lb.) 

* Story to Duval, Biarch 80, 1808, ib. 102. 

' Story to Williams, June 6, 1805, ib. lOMW. 



98 JOHNMABSHALL 

mere slave to the opinions of either/' In exercising 
what he terms his " independent judgment," ^ Story 
favored the repeal of the Embargo, and so earned, 
henceforth, the lasting enmity of Jeflferson.* 

Because of his recognized talents, and perhaps 
also because of the political party to which he be- 
longed, he was employed to go to Washington as 
attorney for the New England and Mississippi Com- 
pany in the Yazoo controversy.^ It was at this 
period that the New England Federalist leaders be- 
gan to cultivate him. They appreciated his ability, 
and thiB assertion of his "independent principles*' 
was to their liking. Harrison Gray Otis was quick 
to advise that seasoned politician, Robert Goodloe 
Harper, of the change he thought observable in 
Story, and the benefit of winning his regard. "He is 
a yoimg man of talents, who commenced Democrat 
a few years since and was much fondled by his 
party,** writes Otis. "He discovered however too 
much sentiment and honor to go all lengths . . and 
a little attention from the right sort of people will 
be very useful to him & to us.'* * 

The wise George Cabot gave Pickering the same 
hint when Story made one of his trips to Washington 
on the Yazoo business. "Though he is a man whom 
the Democrats support,** says Cabot, " I have seldom 
if ever met with one of sounder mind on the principal 
points of national poli<*y. He is well worthy the civil 
attention of the most respectable Federalists.** * 

^ Story» 1, 128. * At first. Story supported the Embargo. 

' See vol. m, chap, x, of this work. 

« Otis to Harper, April 19, 1807, Morison: OHa, i, 288. 

* Cabot to Pickering, Jan. 28, 1808, Lodge: Cabot, 877. 



MABSHALL AND STORY 99 

It was while in the Capital, as attorney before 
Congress and the Supreme Coiirt in the Georgia 
land controversy, that Story, then twenty-nine 
years old, met Marshall ; and impulsively wrote of his 
delight in the "hearty laugh,'* "patience,** consid- 
eration, and abiUty of the Chief Justice. On this 
visit to Washington the young Massachusetts law- 
yer took most of his meals with the members of the 
Supreme Court. ^ At that time began the devotion 
of Joseph Story to John Marshall which was to 
prove so helpful to both for more than a generation, 
and so influential upon the Republic for all time. 

That Story, while in Washington, had copiously 
expressed his changing opinions, as well as his dis- 
approval of Jeflferson's Embargo, is certain; for he 
was "a very great talker,** ^ and stated his ideas with 
the volubility of his extremely exuberant nature. 

At this time, as in after life,** declares Story's son, 

he was remarkable for fulness and fluen<*y of con- 
versation. It poured out from his mind • • sparkling, 
and exhausdess. Language was as a wide open sluice, 
through which every feeling and thought rushed 
forth. . . It would be impossible to give an idea of his 
conversational powers.** ^ 

It was not strange, then, that Jefferson, who was 
eager for all gossip and managed to learn everything 
that happened, or was said to have happened, in 
Washington, heard of Story*s association with the 
Federalists, his unguarded talk, and especially his 
admiration for the Chief Justice. It was plain to 

» Story to Fay, Feb. 16, 1808, Story, h 162. 

> Moss Kent to James Kent, Feb. 1, 1817, Kent MSS. Lib. Cong. 

• Story, 1, 140. 



€1 



100 JOHN MABSHALL 

Jefferson that such a person would never resist Mar- 
shall's mfluence. ' 

In Jefferson's mind existed another objection to 
Story which may justly be inferred from the situa- 
tion in which he found himself when the problem 
arose of filling the place on the Supreme Bendi va- 
cated by the death of Justice Gushing. Story had 
made a profoimd study of the law of real estate; and, 
young though he was, no lawyer in America equaled 
him, and few in England surpassed him, in the intri^ 
cate learning of that brandb of legal science. This 
fact was well known to the bar at Wa^shington as weU 
as to that of Massachusetts. Therefore, the thought 
of Story on the Supreme Bench, and under Ma]> 
shaU's influence, made Jefferson acutely uncomfort^ 
able; for the former President was then engaged in a 
lawsuit involving questions of real estate which, if 
decided against him, would, as he avowed, ruin him. 
This lawsuit was the famous Batture litigation. It 
was this predicament that led Jeff^son to try to 
control the appointment of the successor to Gushing, 
whose death he declared to be "a Godsend'* * to him 
personally; and also to dictate the naming of the 
district judge at Richmond to the vacancy caused 
by the demise of Judge Gyrus Griffin. 

In the spring of 1810, Edward Livingston, f<MV 
merly of New York and then of New Orleans, 
brought suit in the United States Gourt for the Dis- 
trict of Virginia against Thomas Jefferson for dam- 
ages to the amount of one hundred thousand dollars. 

^ Jefferson to Gallatin, Sept. Vt, 1810, Wctks: Ford, zi, footnote to 
152-54. 



MABSHALL AND STORY 101 

This was the same Livingston who in Congress had 
been the Republican leader in the House when Mar- 
shall was a member of that body.^ Afterwards he 
was appointed United States Attorney for the Dis- 
trict of New Yotk and then became Mayor of that 
city. During the yeUow fever epidemic that scourged 
New Yoric in 1808, Livingston devoted himself to 
the care of the victims of the plague, leaving the 
administration of the Mayor's office to a trusted 
derk. In time Livingston, too, was stricken. Dur- 
ing his illness his derk embezzled large siuns of the 
public money. The Mayor was liable and, upon his 
recovery, did not attempt to evade responsibility, 
but resigned his office and gave all his property to 
make good the defalcation. A heavy amount, how- 
ever, still remained unpaid; and the discharge of 
this obligation became the ruling purpose of Living- 
ston's life until, twenty years afterward, he accom- 
plished his object. 

His health regained, Livingston went to New 
Orleans to seek fortime anew. Tha*e he soon became 
the leader of the bar. When Wilkinson set up his 
reign of terror in that dty, it was Edward Livingston 
who swore out writs of habeas corpus for those ille- 
gally imprisoned and, in general, was the most vigor- 
ous as wdl as the ablest of those who opposed Wil- 
kinson's lawless and violent measures.^ Jefferson 
had been displeased that Livingston had not shown 
more enthusiasm for him, when, in 1801, the Fed- 
eralists had tried to elect Burr to the Presidency, 

^ Sec vol. n, 461-74, of this work. 
* See vol. la^ ebtep. vi, of this work. 



102 JOHN MABSHALL 

and bitterly resented Livingston's interference with 
Wilkinson's plans to "suppress treason'' in New 
Orleans. 

One John Gravier, a lifelong resident of that city, 
had inherited from his brother Bertrand certain real 
estate abutting the river. Between this and the 
water the current had deposited an inunense quan- 
tity of alluvium. The question of the title to river- 
made land had never been raised, and everybody 
used it as a sort of common wharf front. Alert for 
opportunities to make money with which fully to 
discharge the defalcation in the New York Mayor's 
office, Livingston investigated the rightful ownership 
of the batture, as the alluvial deposit was termed; 
satisfied himself that the title was in Gravier; gave 
an opinion to that effect, and brought suit for the 
property as Gravier 's attorney.^ While the trial of 
Aaron Burr was in progress in Richmond, the Cir- 
cuit Coiu^ in -New Orleans rendered judgment in 
favor of Gravier,^ who then conveyed half of his 
rights to his attorney, apparently as a fee for the 
recovery of the batture. 

Livingston inunediately began to improve his 
property, whereupon the people became excited and 
drove away his workmen. Governor Claiborne re- 
fused to protect him and referred the whole matter 
to Jefferson. The President did not direct the At- 
torney-General to bring suit for the possession of the 
batture — the obvious and the legal form of proce- 
dure. Lideed, the title to the property was not so 
much as examined. Jefferson did not even take into 

I Hunt: Life qf Edward Lmngttan, 188. * lb, 140. 



MARSHALL AND STORY 108 

consideration the fact that, if Livingston was not the 
rightful owner of the batture, it might belong to 
the City of New Orleans. He merely assmned that 
it was National property; and, hastily acting under 
a law against squatters on lands belonging to the 
United States, he directed Secretary of State Madison 
to have all persons removed from the disputed prem- 
ises. Accordingly, the United States Marshal was 
ordered to eject the " intruder'* and his laborers. 
This was done; but Livingston told his men to re- 
turn to their work and secured an injunction against 
the Marshal from further molesting them. That 
official ignored the order of the court and again drove 
the laborers off the batture. 

Livingston begged the President to submit the 
controversy to arbitration or to judicial decision, 
but Jefferson was deaf to his pleas. The distracted 
lawyer appealed to Congress for relief.^ That body 
ignored his petition.^ He then brought suit against 
the Marshal in New Orleans for the recovery of his 
property. Soon afterward he brought another in Vir- 
ginia against Jefferson, for one hundred thousand 
dollars damages. Such, in brief outline, was the be- 
ginning of the famous "Batture Controversy,'* in 
which Jefferson and Livingston waged a war of, 
pamphlets for years. 

When he learned that Livingston had begun action 
against him in the Federal court at Richmond, Jef- 
ferson was much alarmed. Jn anticipation of the 
death of Judge Cyrus Griffin, Governor John Tyler 

^ Annals, lOth G>ng. 2d Sess. 702. 

* Annals, llth Cong. 1st and 2d Sess. SiS, 827-49, 418-19, 1878, 
1617-18,1694-1702. 



104 JOHN MABSHALL 

had written Jefferson that, while he ^^nevar did ap^ 
ply for an office/' yet "'Judge Griffin is in a low 
state of health, and holds my old office." Tyler 
continues: "'I really hope the President will chance 
to think of me . • in case of accidents, and if an oppor- 
tunity offers, lay me down softly on a bed of roses in 
my latter days.^* He condemns Marshall for his op-^ 
position to the War of 1812, and especially for his 
reputed statement that Great Britain had done 
nothing to justify armed retaliation on our part.^ 
*' Is it possible," asks Tyler, *' that a man who can 
assert this, can have any true sense ol sound veracity? 
And yet these sort of folks retain their stations and 
consequence in life/' * 

Immediately Jefferson wrote to Presid^it Madison: 
^^From what I can learn GrifBn cannot stand it long, 
and really the state has suffered long enough by 
having such a cyj^er in so important an office, and 
infinitdiy the more from the want of any counter^ 
point to the rancorous hatred which Marshall bears 
to the government of his country, & from the cun- 
ning & sophistry within which he is able to enshroud 
himself. It will be difficult to find a character of 
fimmess enough to preserve his independence on 
the same bench with Marshall. T^ler^ I am certain^ 
would do it. • . A milk & water character • • would 
be seen as a calamity. Tyler having been the former 
state judge of that court too, and removed to make 
way for so wretched a fool as Griffin,' has a kind of 
right of reclamation." 

» Sec mpra, 25, S5-41. 

« Tyler to Jefferson, May 1«, ISIO, Tyler: Tylsr, i, «46-47. 

* Cyrus Griffin was educated in England; was a member of the 



MARSHALL AND STORY 105 

Jefferson gives other reasons for the appomtment 
of Tyler, and then addresses Madison thus: ^^You 
have seen in the pi^)ers that Livingston has served 
a writ on me, stating damages at 100,000. D. • . I 
shall soon look into my papers to make a state of 
the case to enable them to {dead." Jefferson hints 
broadly that he may have to summon as witnesses 
kis ^'associates in the proceedings," cme of whom 
was Madison himself. 

He ccmcludes this astounding letter in these 
words: ''It is a little doubted that his [Livingston's] 
knol^e [sic] of Marshall's character has induced him 
to bring this action. His twistifications of the law 
in the case of Marbury, in that of Burr, & the late 
Yazoo case shew how dexterously he can reconcile law 
to his personal biasses: and nobody seems to doubt 
that he is ready prepared to decide that Livmgston's 
right to the battiure is unquestionable, and that I 
am bound to pay for it with my private fortune." ^ 

The nert day Jefferson wrote Tyler that he had 
"laid it down as a law" to himself "never to embar- 
rass the President with any solicitations." Yet, in 
Tyler's case, says Jefferson, " I . . have done it with 
all my heart, and in the full behef that I serve him 

first L^pslature of Virginia after the Declaration of Independence; 
was a ddegate to the Continental Congress in 177S-S1, and agiun in 
17S7-88> and was President of that body during the hist year of his 
service. He wa3 made President of the Supreme Court of Admiralty, 
and hdd that office until the court was abolished. When the Consti- 
tution was adopted, and Washington elected President, one of hia 
first acts, after the passage of the Ellsworth Judiciary Law, was to 
aqppoint Judge Griffin to the newly created office of Judge of the 
United States Court for the District of Virginia. It is thus evident 
that Jefferson's statement was not accurate. 
^ Jcfierson to Madison, May 25, ISIO, Work$: Ford, zi, ld9-41« 



106 JOHN MABSHALL 

and the public in urging the appointment/' For, 
Jefferson confides to the man who, in case Madison 
named him, would, with Marshall, hear the suit, 
"we have long enough suffered under the base pros- 
titution of the law to party passions in one judge, 
and the imbecility of another. 

"' In the hands of one [Marshall] the law is nothing 
more than an ambiguous text, to be explained by his 
sophistry into any meaning which may subserve 
his personal malice. Nor can any milk-and-water as- 
sociate mamtain his own independence, and by a firm 
pursuance of what the law really is, extend its pro- 
tection to the citizens or the public. . . And where you 
cannot induce your colleague to do what is right, 
you will be firm enough to hinder him from doing 
what is wrong, and by opposmg sense to sophistry, 
leave the juries free to follow their own judgment." ^ 

Upon the death of Judge GrifiSn in the following 
December, John Tyler was appointed to succeed 
him. 

On September 13, 1810,William Gushing, Associate 
Justice of the Supreme Court, died. Only three Fed- 
eralists now remained on the Supreme Bench, Samuel 
Chase, Bushrod Washington, and John Marshall. 
The other Justices, William Johnson of South Caro- 
lina, Brockholst Livingston of New York, and Thomas 
Todd of Kentucky, were Republicans, appointed 
by Jefferson. The selection of Cushing's successor 
would give the majority of the court to the Repub- 
lican Party for the first time since its organization. 

1 Jeflferaon to Tyler, May 26, 1810, Tyler: Tyler, I, 247-48; aly* 
Works: Ford, xi, footnote to 141-4$. 



MABSHALL AND STORY 107 

That Madison would fill the vacancy by one of his 
own following was certain; but this was not enough 
to satisfy Jefferson, who wanted to make sure that 
the man selected was one who would not fall under 
Marshall's baleful influence. If Griffin did not die in 
time, Jefferson's fate in the batture litigation would 
be in Marshall's hands. 

Should Griffin be polite enough to breathe his 
last promptly and Tyler be appointed in season, still 
Jefferson would not feel safe — the case might go 
to the jury, and who could tell what their verdict 
would be under MarshaU's instructions? Even Tyler 
might not be able to "hinder" Marshall "from wrong 
doing"; for nothing was more probable than that, 
no matter what the issue of the case might be, it 
would be carried to the Supreme Court if any ground 
for appeal could be found. Certainly Jefferson would 
take it there if the case should go against him. It was 
vital, therefore, that the latest vacancy on the Su- 
preme Bench should also be filled by a man on whom 
Jefferson could depend. 

The new Justice must come from New England, 
Gushing having presided over that circuit. Repub- 
lican lawyers there, fit for the place, were at that 
time extremely hard to find. Jefferson had been 
corresponding about the batture case with Gallatin, 
who had been his Secretary of the Treasury and con- 
tinued in that office under Madison. The moment 
he learned of Cushing's death, Jefferson wrote to 
Gallatin in answer to a letter from that able man, 
admitting that " the Batture • . could not be within 
the scope of the law . . against squatters," under 



108 JOHN MARSHALL 

color of which Livingston had been forcibly ousted 
from that property. J^erson adds: "I should so 
adjudge myself; yet I observe many opinions other- 
wise» and in defence against a spadassin it is law- 
ful to use all weapons/' The case is complex; 
still no unbiased man '^can doubt what the issue 
of the case ought to be. What it will be, no one 
can tell. 

"The judge's [Marshall's] inveteracy is pn^ound, 
and his mind of that gloomy malignity which will 
never let him forego the opportunity of satiating it 
on a victim. His decisions, his instructions to a jury, 
his allowances and disallowances and garblings of 
evidence, must all be subjects of appeal. . • And to 
whom is my appeal? From the judge in Biur's case 
to himself and his associate judges in the case of 
Marbury v. Madison. 

" Not exactly, however. I observe <Jd Gushing is 
dead. • . The event is a fortunate one, and so timed 
as to be a Godsend to me. I am sure its importance 
to the nation will be felt, and the occasion employed 
to complete the great operation they have so long 
been executing, by the appointment of a decided 
Republican, with nothing equivocal about him. But 
who will it be?" 

Jefferson warmly recommends Levi Lincoln, his 
former Attomey-Greneral. Since the new Justice 
must come from New England, "can any other bring 
equal qualifications? • • I know he was not deemed 
a profound common lawyer; but was there ever a 
profoimd common lawyer known in one of the 
£ast^*n States? There never was, nor never can be, 



MARSHALL AND STORY 109 

one from tiiose States. • • Mr* Lincoln is . . as learned 
in their laws as any one they have/' * 

After allowing time for Gallatin to carry this mes- 
sage to the President, Jeflferson wrote directly to 
Madison. He congratulates him on ^^the revocation 
of the French decrees '' ; abuse3 Great Britain for her 
"principle '* of " the exclusive right to the sea by con- 
quest '' ; and then comes to the matter of the vacancy 
on the Supreme Bench. 

*^ Another circumstance of congratulation is the 
death of Gushing/' whidi "gives an opportunity of 
closing the reformation [the Republican triumph of 
1800] by a successor of unquestionable republican 
principles.'* Jeflferson suggests Lincoln. "Were he 
out of the way/' then Gideon Granger ought to be 
chosen, " tho' I am sensible that J.[ohn] R.[andolph] 
has been able to lessen the confidence of many in 
him.^ . • As the choice must be of a New Englander, 
. . I confess I know of none but these two characters/' 
Of course there was Joseph Story, but he is " unques- 
tionably a tory/' and "too young/' • 

Madison strove to follow Jefferson's desires. Cush- 
ing's place was promptly offered to Lincoln, who de- 

^ Jefferson to Gallatin, Sept. 27, 1810, Wofka: Ford, xi, footnote 
tol5d-54. 

* Gideon Granger, as Jeff^'son's Postmaster-General, had lobbied 
on the floor of the House for the Yazoo Bill, offering government con« 
tracts for votes. He was denounced by Randolph in one of the most 
scathing arraignments ever heard in Congress. (See voL ni» 57S-79» 
of this work.) 

* Jefferson to Madison, Oct 15, 1810, Works: Ford, zi, 15(>-5£. 
Granger was an eagercandidate for the place, and had asked Jefferson's 
support. In assuring him that it was given, Jefferson tells Granger 
ol his "esteem & approbation," and adds that the appointment of "a 
firm unequivocating republican" is vital. (Jefferson to Granger, Oct 
n, 1810, ib. footnote to 155.) 



110 JOHN MARSHALL 

dined It because of approaching blindness. Granger, 
of com^se, was impossible — the Senate would not 
have confinned him. So Alexander Wolcott, "an 
active Democratic politician of Connecticut," of 
mediocre ability and "rather dubious . . character," * 
was nominated; but the Senate rejected him. It 
seemed impossible to find a competent lawyer in 
New England who would satisfy Jeflferson's require- 
ments. John Quincy Adams, who had deserted the 
Federalist Party and acted with the Republicans, 
and who was then Minister to Russia, was appointed 
and promptly confirmed. Jeflferson himself had not 
denounced Marshall so scathingly as had Adams in 
his report to the Senate on the proposed expulsion 
of Senator John Smith of Ohio.* It was certain that 
he would not, as Associate Justice, be controlled 
by the Chief Justice. But Adams preferred to con- 
tinue in his diplomatic post, and refused the ap- 
pointment. 

Thus Story became the only possible choice. After 
all, he was still believed to be a Republican by every- 
body except Jeflferson and the few Federalist leaders 
who had been discreetly cultivating him. At least 
his appointment would not be so bad as the selection 
of an out-and-out Federalist. On November 18, 
1811, therefore, Joseph Story was. made an Asso- 
ciate Justice of the Supreme Court of the United 
States. In Massachusetts his appointment "was 
ridiculed and condemned." ' 

Although Jeflferson afterward declared that he 

^ Hildreth: Higtory of the United States, vz, 241; and see Adama; 
17.5. V, 859-60. 
s See voL m, 541-48» of this work. * Stoy» i» 21ie. 



L 



MAKSHALL AND STORY 111 

A 
f 

**had a strong desire that the public should have 
been satisfied by a trial on the merits/' ^ he was will- 
ing that his cx)unsel should prevent the case from 
coming to trial if they could. Fearing, however, that 
they would not succeed, JeflFerson had prepared, for 
the use of his attorneys, an exhaustive brief covering 
his version of the facts and his views of the law. 
Spencer Roane, Judge of the Virginia Court of Ap- 
peals, and as hot a partisan of Jefferson as he was 
an implacable enemy of Marshall, read this manu- 
script and gave Tyler "some of the outlines of it.*' 
Tyler explains this to Jefferson after the decision in 
his favor, and adds that, much as Tyler wanted to 
get hold of Jefferson's brief, still, "as soon as I had 
received the appointment • . (which I owe to your 
favor in great measiu^), it became my duty to shut 
the door against every observation which might in 
any way be derived from either side, lest the im- 
pudent British faction, who had enlisted on Living- 
ston's side, might suppose an imdue influence had 
seized upon me." ^ '> 

The case aroused keen interest in Virginia and, in- k 
deed, throughout the country. Jefferson was still the 
leader of the Republican Party and was as much be- 
loved and revered as ever by the great majority of the 
people. When, therefore, he was sued for so large a 
sum of money, the fact excited wide and lively atten- 
tion. That the plaintiff was such a man as Edward 
Livingston gave sharper edge to the general interest. 
Especially among lawyers, curiosity as to the out- 

» Jefferson to Wirt, Aprfl 1«, 181«, Worka : Ford. xi. 227. 
* Tyler to Jefferson, May 17, 1812, Tyler: Tyler, i, 268. 



112 JOHN MARSHALL 

come was keen. In Richmond, of course, "great 
expectation was excited." 

When the case came on for hearings T^yler was so 
ill from a very painful affliction that he could scarcely 
sit through the hearing; but he persisted because he 
had "determined to give an opinion.'* The question 
of jurisdiction alone was argued arid only this was 
decided. Both judges agreed that the court had no 
jurisdiction, though Marshall did so with great re^ 
luctance. He wished " to carry the cause to the Su- 
preme Court, by adjournment or somehow or oth^; 
but," says Tyler in his report to Jefferson, "I pressed 
the propriety of [its] being decided." ^ 

Marshall, however, delivared a written opmion in 
which he gravely reflected on Jefferson's good faith 
in avoiding a trial on the merits. If the court, upon 
mere technicality, were prevented from trying and 
deciding the case, ^^ the injured party may have a 
dear right without a remedy "; and that, too, "in a 
case where a person who has done the wrong, and 
who ought to make the compensation, is within the 
power of the court." The situation created by Jef- 
ferson's objection to the court's jurisdiction was un- 
fortunate : " Where the remedy is against the person, 
and is within the power of the court, I have not yet 
discerned a reason, other than a technical one, which 
can satisfy my judgment" why the case should not 
be tried and justice done. 

"If, however," continues Marshall, "this techni- 
cal reason is firmly established, if all other judges re- 
spect it, I cannot venture to disregard it," no matter 

1 Tyler to Jefferson, May 17, 1812, Tyler: Tyler, i, 263-^ 



MABSHALL AND STORY 113 

how wrong in principle and injurious to Livingston 
the Chief Justice might think it. If Lord Mansfield, 
"one of the greatest judges who ever sat upon any 
bench, and who has done more than any other, to 
remove those technical impediments which . . too 
long continued to obstruct the course of substantial 
justice,*' had vainly attempted to remove the very 
" technical impediments" which Jefferson had thrown 
in Livingston's way, Marshall would not make the 
same fruitless effort. 

To be sure, the technical point raised by Jefferson's 
counsel was a legal fiction derived from " the common 
law of England"; but "this conunon law has been 
adopted by the legislating of Virginia"; and "had it 
not been adopted, I should have thought it in force." 
Thus Marshall, by innuendo, blames Jefferson for in- 
voking, for his own protection, a technicality of that 
very common law which the latter had so often and so 
violently denounced. For the third time Marshall de- 
duL plores the use of a technicality "which produces the. 
inconvenience of a dear right without a remedy."' 
" Other judges have felt the weight of this argument, 
and have struggled ineffectually against" it; so, he 
concluded, "I must submit to it." ^ 

Thus it was that Jefferson at last escaped ; for it was| 
nothing less than an escape. What a decision on the 
merits of the case would have been is shown by the 
opinion of ChanceUor Kent, stated with his charac- 
teristic emphasis. Jefferson was anxious that the 
public should think that he was in the right. "Mr. 
Livingston's suit having gone off on the plea to the 

^ 1 Brockenbrough, 1^06-12. 



1 



114 JOHN MABSHALL 

jurisdiction, it's foundation remains of course unex- 
plained to the public. I have therefore concluded to 
make it public thro' the • • press. . . I am well satisfied 
to be relieved from it, altho' I had a strong desire 
that the public should have been satisfied by a trial 
on the merits/'^ Accordingly, Jefferson prepared his 
statement of the controversy and, curiously enough^ 
published it just before Livingston's suit against the 
United States Marshal in New Orleans was approach- 
ing decision. To no other of his documents did he 
give more patient and laborious care. Livingston 
replied in an article * which justified the great reputa- 
tion for ability and learning he was soon to acquire 
in both Eiux)pe and America.' Kent followed this 
written debate carefully. When livingston's answer 
appeared, Kent wrote him: "I read it eagerly and 
studied it thoroughly, with a re-examination of 
Jefferson as I went along; and I should now be 
as willing to subscribe my name to the validity of 
your title and to the atrocious injustice you have 
received as to any opinion contained in Johnson's 
Reports." * 

1 Jefferson to Wirt, April 12, 1812, Works: Ford, xi, 226-«7. On 
the Batture controversy see Hildreth, vi, 14S-48. 

' The articles of both Jefferson and Livingston are to be found in 
Hall's American Law Journal (Philadelphia, 1816), vol. v, 1-91, 115- 
289. A brief but valuable summary of Livingston's reply to Jefferson 
is found in Hunt: Livingston, 148-80. For an abstract of Jefferson's 
attack, see Randall: Life of Thomas Jefferson, m, 266-68. 

' See Hunt: Livingston, 276-80. 

^ Kent to Livingston, May 13, 1814, Hunt: Livingston, 181-82. 
Kent was appointed Chancellor of the State of New York, Feb. 25, 
1814. His opinions are contained in Johnson*s Chancery Reports, to 
which he refers in this letter. 

For twenty years Livingston fought for what he believed to be his 
.ights to the batture, and, in the end, was successful; but in such 



MARSHALL AND STORY 116 

Marshall's attitude in the Batture litigation in- 
tensified Jefferson's hatred for the Chief Justice, 
while Jeflferson's conduct in the whole matter still 
further deepened Marshall's already profound belief 
that the great exponent of popular government was 
dishonest and cowardly. Story shared Marshall's 
views; indeed, the Battiure controversy may be said 
to have furnished that personal element which 
completed Story's forming antagonism to Jeflferson.u 
"Who . . can remember, without regret,.his conduct 
in relation to the batture of New Orleans?" wrote 
Story many years afterward. ^ 

The Chief Justice attributed the attacks which 
Jefferson made upon him in later years to his opinion 
in Livingston vs. Jefferson, and to the views he was 
known to have held as to the merits of that case and 
Jefferson's com^se in relation to it. "The Battiu^ 
will never be forgotten," wrote the Chief Justice 
some years later when commenting on the attacks 
upon the National Judiciary which he attributed to 

fashion that the full value of the property was only realized by his 
family long after his death. 

Notwithstanding Jefferson's hostility, Livingston grew in public 
favor, was elected to the Louisiana State Legislature and then to 
Congress, where his work was notable. Later, in 18^, he was chosen 
United States Senator from that State; and, after serving one term, 
was appointed Secretary of State by President Jackson. In this office 
he prepared most of the President's state papers and wrote Jackson's 
great Nullification Proclamation in 1882. 

Livingston was then sent as Minister to France and, by his brilliant 
conduct of the negotiations over the French Spoliation Claims, secured 
the payment of them. He won fame throughout Europe and Spanish 
America by hb various works on the penal code and code of procedure. 
In the learning of the law he was not far inferior to Story and Kent. 

Aside from one or two sketches, there is no account of his life except 
an inadequate biography by Charles H. Hunt. 

» Story, 1, 186. 



/• 



116 JOHN MARSHALL 

JeflFerson.^ Again: "The case of the mandamus ' may 
be the doak, but the batture is recollected with still 
more resentment." ' 

Events thus sharpened the hostility of Jefferson 
and his following to Marshall, but drew closer the 
bonds between the Chief Justice and Joseph Story. 
Once under Marshall's pleasing^ steady, powerful 
influence, Story sped along the path of Nationalism 
untU sometimes he was ahead of the great construc- 
tor who, as he advanced, was building an enduring 
and practicable highway. 

^ Marshall to Story* Sept. 18, 1821, Proceedings, Mass. Hist, 8oc. 
2d series, xiv, 880; and see it^ra, 883-64. 

' Marbury vs, Madison. 

* Marshall to Story, July 18, 1821, Proceedings, Mass. Hist. Soe. 
2d series, xiv, 828-29. 



CHAPTER ni 

INTERNATIONAL LAW 

> 

It wms Marshall's lot in more tlian one case to blaie the way in tJbe estab- 
lishment of rules of international conduct. (John Baasett Moore.) 

The defects of our system of government must be remedied, not by the judi- 
ciaiy, but by the sovereign power of the people. 

(Judge William H. CabeU of the Virginia Court of Appeals.) 

I look upcm this question as one which may a£Fect, in its consequences, the 
prrmanenoe of the American Union. 

(Justice William Johnson of the Supreme Court.) 

While Marshall unhesitatingly struck down State 
laws and shackled State authority, he just as firmly 
and promptly upheld National laws and National 
authority. In Marbury vs. Madison he proclaimed 
the power of National courts over Congressional leg- 
islation so that the denial of that power might not 
be admitted at a time when, to do so, would have 
yielded forever the vital principle of Judiciary super- 
vision.^ But that opinion is the significant exception 
to his otherwise unbroken practice of recognizing the < 
validity of acts of Congress. 

He carried out this practice even when he believed 
the law before him to be unwise in itself, injurious to 
the Nation, and, indeed, of extremely doubtful con- 
stitutionality. This course was but a part of Mar- 
shall's Nationalist policy. The purpose of his life 
was to strengthen and enlarge the powers of the 
National Government; to coSrdinate into harmo- 
nious operation its various departments; and to 
make it in fact, as well as in principle, the agent of 

^ See voL m, chap, m, of this work. 



118 JOHN MARSHALL 

a people constituting a single, a strong, and efficient 
Nation. 

A good example of his maintenance of National 
laws is his treatment of the Embargo, Non-Impor- 
tation, and Non-Litercom*se Acts. The hostility of 
the Chief Justice to those statutes was, as we have 
seen, extreme; the political party of which he was 
an ardent member had denoimced them as imconsti- 
tutional; his closest friends thought them invalid. 
He himself considered them to be, if within the Con- 
stitution at all, on the periphery of it; ^ he believed 
them to be ruinous to the coimtry and meant as an 
undeserved blow at Great Britain upon whose vic- 
tory over France depended, in his opinion, the safety 
of America and the rescue of imperiled civilization. 

Nevertheless, not once did Marshall, in his many 
opinions, so much as suggest a doubt of the validity 
of those measures, when cases came before him aris- 
ing from them and requiring their interpretation 
and application. Most of these decisions are not 
now of the slightest historical importance.* His opin- 
ions relating to the Embargo are, indeed, tiresome 

^ This b a fair inference from the statement of Joseph Story in his 
autobiography : ** I have ever considered the embargo a measure, which 
went to the utmost limit of constructive power under the Constitu- 
tion. It stands upon the extreme verge of the Constitution, being in 
its very form and terms an imlimited prohibition, or suspension of 
foreign commerce.'' (Story, i, 185-86.) When it is remembered that 
after Story was made Associate Justice his views became identical 
with those of Marshall on almost every subject, it would seem likely 
that Story expressed the opinions of the Chief Justice as well as his 
own on the constitutionality of the Embargo. 

* See, for instance, the case of William Dixon et al. tfs. The United 

States, 1 Brockenbrough, 177; United States V8. , t&. 195; the case 

of the Fortupa, ib. 299; the case of the Brig Caroline, tb. 884; Thom- 
son and Dixon vs. United States (case of the Schooner Patriot), ib. 407. 



INTERNATIONAL LAW 119 

and dull, with scarcely a flash of genius to brighten/ 
them. Now and then, but so rarely that search for 
it is not worth making, a paragraph blazes with the 
statement of a great principle. In the case of the 
Ship Adventure and Her Cargo, one such statesman- 
like expression illuminates the page. The Non- 
Intercourse Law forbade importation of British 
goods "from any foreign port or place whatever." 
The British ship Adventure had been captured by a 
French frigate and given to the master and crew of an 
American brig which the Frenchmen had previously 
taken. The Americans brought the Adventure into 
Norfolk, Virginia, and there claimed the proceeds of 
ship and cargo. The United States insisted that ship 
and cargo should be forfeited to the Government be- 
cause brought in from "a foreign place." But, said 
Marshall on this point: "The broad navigable ocean, 
which is emphatically and truly termed the great 
highway of nations, cannot . . be denominated ^a 
foreign place.' . . The sea is the conunon property of 
all nations. It belongs equally to all. None can ap- 
propriate it exclusively to themselves; nor is it 'for- 
eign ' to any." * 

Where special learning, or the examination of the 
technicalities and nice distinctions of the law were re- 
quired, Marshall did not shine. Of admiralty law in 
particular he knew little. The preparation of opin- 
ions in such cases he usually assigned to Story who, 
not unjustly, has been considered the father of Amer- 
ican admiralty law.^ Also, in knowledge of the in- 
tricate law of real estate, Story was the superior of 

^ 1 Brockenbrough, 241. * See Warren, 279. 



120 JOHN MABSHALL 

Marshall and, indeed, of all the other members of 
the court. Story's preeminence in most branches of 
legal learning was admitted by his associates, all 
of whom gladly handed over to the youthful Justice 
more than his share of work. Story was flattered 
by the recognition. " My brethren were so kind as 
to place confidence in my researches/' * he tells his 
friend Judge Samuel Fay. 

During the entire twenty-four years that Marshall 
and Story were together on the Supreme Bench the 
Chief Justice sought and accepted the younger man's 
judgment and frankly acknowledged his authority 
in every variety of legal questions, excepting only 
those of international law or the interpretation of the c. 
Constitution. " I wish to consult you on a case which 
to me who am not versed in admiralty proceedings 
has some difliculty,'* Marshall writes to Story in 
1819.* In another letter Marshall asks Story's help 
on a "question of great consequence.*' * Again and 
again he requests the assistance of his learned junior 
associate.^ Sometimes he addresses Story as though 
that erudite Justice were his superior.* Small won- 
der that John Marshall should declare that Story's 
"loss would be irreparable" to the Supreme Bench, 
if he should be appointed to the place made vacant by 
the death of Chief Justice Parker of Massachusetts.* 

1 Story to Fay, April «4, 1814, Story, i, «61. 
« MRrahall to Story, May «7, 1819, Proceedings, Mass. HisL Soe. 
2d Series, xiv, S^. This was the case of the Little Charles. 

* Same to same, July 18, 1819, tb. S^. 

« Same to same, Jmie 15, 1821, ib. 827; Sept. 18, 1821, i6. 881; Dec 
9, 1828, t&. 884; June 26, 1881, %b. 844. 
B Same to same, July 2, 1828, ib. 831-88. 

• Same to same, Oct. 15, 1880, ib. 842. 



INTERNATIONAL LAW 121 

Only in his expositions of the Constitution did 
Marshall take supreme command. If he did anything 
preeminent, other than the infusing of life into that 
instrument and thus creating a steadying force in the 
rampant activities of the young American people, it 
was his contributions to international law, which were 
of the highest order, ^ 

The first two decades of his labors as Chief Justice 
were prolific in problems involving international re- 
lations. The capture of neutral ships by the European 
belligerents; the complications incident to the struggle 
of Spanish provinces in South America for independ- 
ence; the tangle of conflicting claims growing out of 
the African slave trade — the unsettled questions 
arising from all these sources made that period of 
Marshall's services unique in the number, impor- 
tance, and novelty of cases requiring new and au- 
thoritative announcements of the law of nations. An 
outline of three or four of his opinions in such cases 
will show the quality of his work in that field of legal 
science and also illustrate his broad conception of 
some of the f undamentab of American statesman- 
ship in foreign affairs. 

His opinion in the case of the Schooner Exchange 
lays down principles which embrace much more than 
was involved in the question inunediately before the 
court ^ — a practice habitual with Marshall and dis- 

^ Jolm BasseU Moore, in his Z)^«9fqf/n<0rnafto?iaZZatr» cites Mar- 
shall frequenUy and often uses passages from his opinions. Henry 
Wheaton» in his Elements qf InternaHonal Law, sometimes quotes Mar- 
shall's language as part of the text 

' Professor John Bassett Moore» in a letter to the author, says that 
he considers Marshall's opinion in this case his greatest in the realm of 
international law. 



122 JOmr MABSHALL 

tinguishing him sharply from most jurists. The ves- 
sel in controversy, owned by citizens of Maryland, 
was, in 1810, captured by a French warship, armed, 
and taken into the French service. The capture was 
made under one of the decrees of Napoleon when the 
war between Great Britain and France was raging 
fiercely. This was the Rambouillet Decree of March 
23, 1810, which because of the Non-Intercourse Act 
of March 1, 1809, ordered that American ships, en- 
tering French ports, be seized and sold.* The follow- 
ing year the Exchange, converted into a French 
national war-craft under the name of the Balaou, 
manned by a French crew, commanded by a French 
captain, Dennis M. Begon, put into the port of 
Philadelphia for repairs of injuries sustained in 
I stress of weather. The former owners of the vessel 
'libeled the ship, alleging that the capture was illegal 
and demanding their property. 

In due course this case came before Marshall who, 
on March 8, 1812, delivered a long and exhaustive 
opinion, the eflfect of which is that the question of 
title to a ship having the character of a man-of-war is 
not justiciable in the courts of another coimtry. The 
Chief Justice begins by avowing that he is ^^ exploring 
an unbeaten path" and must rely, mainly, on "gen- 
eral principles.'* A nation's jurisdiction within its 
own territory is " necessarily exclusive and absolute. 
It is susceptible of no limitation not imposed by it- 
self.*' The nation itself must consent to any restric- 
tions upon its "full and complete power . . within 
its own territories." 

\ Am. State Papert, For. ReL m» 884. 



INTERNATIONAL LAW 123 

Nations are "distinct sovereignties, possessing 
equal rights and equal independence"; and, since 
mutual intercourse is for mutual benefit, "all sover- 
eigns have consented *' in certain cases to relax their 
" absolute and complete jurisdiction within their re- 
spective territories. • . Common usage, and • • com- 
mon opinion growing out of that usage" may deter- 
mine whether such consent has been given. * Even 
when a nation has not expressly stipulated to modify 
its jurisdiction, it would be guilty of bad faith if 
"suddenly and without previous notice" it violated 
"the usages and received obligations of the civilized 
world." 

One sovereign is not "amenable" to another in 
any respect, and "can be supposed to enter a foreign 
territory only under an express license, or in the con- 
fidence that the inununities belonging to his inde- 
pendent sovereign station, though not expressly 
stipulated, are reserved by implication, and will be 
extended to him." From the facts that sovereigns 
have "perfect equality and absolute independence," 
and that mutual intercourse and "an interchange of 
good oflSces with each other" are to their common 
advantage, flows a class of cases in which all sover- 
eigns are "understood to waive the exercise of a 
part of that complete exclusive territorial jurisdic- 
tion" which is "the attribute of every nation." 

One of these cases "is admitted to be the exemp- 
tion of the person of the sovereign from arrest or 
detention within a foreign territory. If he enters that 
territory with the knowledge and license of its sover- 

^ 7 Cranch, ISO. 



124 JOHN MABSHALL 

eign, that license, although containing no stipulation 
exempting his person from arrest, is universally im- 
derstood to imply such stipulation." ^ The protec- 
tion of foreign ministers stands ^*on the same princi- 
ples.'* The governments to which they are accredited 
need not expressly consent that these ministers shall 
receive inmiunity, but are "supposed to assent to 
it." This assent is implied from the fact that, " with- 
out such exemption, every sovereign would hazard 
his own dignity by employing a public minister 
abroad. . . Therefore, a consent to receive him, im- 
pUes a consent" that he shall be exempt from the 
territorial jurisdiction of the nation to which he is 
sent.* 

The armies of one sovereign cannot pass through 
the territory of another without express permission; 
to do so would be a violation of faith. Marshall here 
enters into the reasons for this obvious rule. But the 
case is far otherwise, he says, as to "ships of war 
entering the ports of a friendly power." The same 
dangers and injuries do not attend the entrance of 
such vessels into a port as are inseparable from the 
march of an army through a country. But as to for- 
eign vessels, " if there be no prohibition," of which 
notice has been given, "the ports of a friendly na- 
tion are considered as open to the public ships of 
all powers with whom it is at peace, and they are 
supposed to enter such ports and to remain in them 
while allowed to remain, under the protection of the 
government of the place." • Marshall goes into a long 
examination of whether the rule applies to ships of 

1 7 Cranch, 187. « lb. 13a-39. » lb. 141. 



INTERNATIONAL LAW 125 

war, and concludes that it does. So the Exchange, 
now an armed vessel of France, rightfully came into 
the port of Philadelphia and, while there, is under 
the protection of the American Government. 

In this situation can the title to the vessel be adju- 
dicated by American courts? It cannot, because the 
schooner ^^must be considered as having come into 
the American territory under an implied promise, 
that while necessarily within it, and demeaning her- 
self in a friendly manner, she should be exempt from 
the jurisdiction of the country." ^ 

Over this general question there was much con- 
fusion and wrangling in the courts of various coun- 
tries, but Marshall's opinion came to be universally 
accepted, and is the foundation of international law 
on that subject as it stands to-day.^ 

Scarcely any other judicial act of Marshall's life 
reveals so clearly his moral stature and strength. 
He was, as he declared, ^^ exploring an unbeaten 
path,*' and could have rendered a contrary decision, 
sustaining it with plausible arguments. Had he 
allowed his feelings to influence his judgment; had 
he permitted his prejudices to affect his reason; had 
he heeded the desires of political friends — his opin- 
ion in the case of the Exchange would have been the 
reverse of what it was. 

In the war then desolating Europe, he was an in- 
tense partisan of Great Britain and bitterly hostile 
to France. • He hated Napoleon with all the vigor 
of his being. He utterly disapproved of what he 

1 7 Cranch, 147. * See John BasseU Moore in Dillon, i, 521-28. 
' See supra, chap. L 



126 JOHN MARSHALL 

believed to be the Administration's truckling, or, at 
least, partiality, to the Emperor. Yet here was a 
ship, captured from Americans under the orders of 
that " Satanic" ruler, a vessel armed by him and in 
his service. The emotions of John Marshall must 
have raged furiously; but he so utterly suppressed 
them that dear reason and considerations of states- 
manship alone controlled him. 

In the South American revolutions against Spain, 
American sailors generally and, indeed, the Ameri- 
can people as a whole, ardently sympathized with 
those who sought to establish for themselves free 
anaindependent governments. Often American sea- 
men took active part in the conflicts. On one such 
occasion three Yankee mariners, commissioned by 
the insurrectionary government of one of the revolt- 
ing provinces, attacked a Spanish ship on the high 
seas, overawed the crew, and removed a large and 
valuable cargo. The oflFending sailors were indicted 
and tried in the United States Court for the District 
of Massachusetts. 

Upon the many questions arising in this case. 
United States vs. Palmer,* the judges, Story of the 
Supreme Court, and John Davis, District Judge, 
disagreed and these questions were certified to the 
Supreme Court for decision. One of these questions 
was: What, in international law, is the status of a 
revolting province during civil war? * In an ex- 
tended and closely reasoned opinion, largely devoted 
to the construction of the act of Congress on piracy, 
the Chief Justice lays down the rule that the relation 

^ d Wheaton, 61(M4. * lb. 614. 



INTERNATIONAL LAW 127 

of the United States to parts of countries engaged in 
internecine war is a question which must be deter- 
mined by the political departments of the Govern- 
ment and not by the Judicial Department. Ques- 
tions of this kind " belong . . to those who can declare 
what the law shall be; who can place the nation in 
such a position with respect to foreign powers as to 
their own judgment shall appear wise; to whom are 
entrusted all its foreign relations. . . In such contests 
a nation may engage itself with the one party or the 
other; may observe absolute neutrality; may recog- 
nize the new state absolutely; or may make a limited 
recognition of it. 

"The proceeding in courts must depend so entirely 
on the course of the government, that it is difficult 
to give a precise answer to questions which do not 
refer to a particular nation. It may be said, generally, 
that if the govemmefit remains neutral, and recog- 
nizes the existence of a civil war, its courts cannot 
consider as criminal those acts of hostility which 
war authorizes, and which the new government may 
direct against its enemy. To decide otherwise, would 
be to determine that the war prosecuted by one of 
the parties was unlawful, and would be to arraign 
the nation to which the court belongs against that 
party. This would transcend the limits prescribed 
to the judicial department." * So the Yankee "lib-^ 
erators " were set free. 

Another instance of the haling of American citi- 
zens before the courts of the United States for hav- 
ing taken part in the wars of South American coun- 

^ 8 Wheaton, 634-85. 



128 JOHN MABSHALL 

tries for liberation was the case of the Divina Pastora. 
This vessel was captured by a privateer manned and 
oflScered by Americans in the service of the United 
Provinces of Rio de la Plata. An American priize 
crew was placed on board the Spanish vessel which 
put into the port of New Bedford in stress of weather 
and was there libeled by the Spanish Consul. The 
United States District Court awarded restitution, 
the Circuit Court affirmed this decree, and the case 
was appealed to the Supreme Court. 

Marshall held that the principle announced in the 
Palmer case governed the question arising from the 
capture of the Divina Pastora. "The United States, 
having recognized the existence of a civil war be- 
tween Spain and her colonies, but remaining neutral, 
the courts of the Union are bound to consider as law- 
ful those acts which war authorizes." Captures by 
privateers in the service of the revolting colonies are 
"regarded by us as other captures, jure belli, are re- 
garded,'' unless our neutral rights or our laws or 
treaties are violated.^ 

The liberal statesman and humanitarian in Mar- 
shall on matters of foreign policy is often displayed in 
his international utterances. In the case of the Venus,^ 
he dissented from the harsh judgment of the major- 
ity of the court, which clearly stated the cold law as 
it e^dsted at the time, " that the property of an Ameri- 
can citizen domiciled in a foreign country became, 
on the breaking out of war with that coimtry, im- 
mediately confiscable as enemy's property, even 
though it was shipped before he had knowledge of 

^ 4 Wheaton, 6S-64. * 8 Cranch, 253-S17. 



INTERNATIONAL LAW 129 

the war/* * Surely, said Marshall, that rule ought 
not to apply to a merchant who, when war breaks 
out, intends to leave the foreign country where he 
has been doing business. Whether or not his prop- 
erty is enemy property depends not alone on his resi- 
dence in the enemy country, but also on his intention 
to remain after war begins. But it is plain that evi- 
dence of his intention can seldom, if ever, be given 
during peace and that it can be furnished only ^* after 
the war shall be known to him/' Of consequence, 
^* justice requires that subsequent testimony shall be 
received to prove a pre-existing fact/* * 

It is not true that extended residence in a foreign 
country in time of peace is evidence of intention to 
remain there permanently. "The stranger merely 
residing in a country diuing peace, however long 
his stay, . • cannot . • be considered as in(X)rporated 
into that society, so as, immediately on a declaration 
of war, to become the enemy of his own.'* * Even 
the ancient writers on international law coi;icede this 
principle. But modem commerce has sensibly in- 
fluenced international law and greatly strengthened 
the common sense and generally accepted considera- 
tions just mentioned. All know, as a matter of every- 
day experience, that "merchants, while belonging 
politically to one society, are considered commer- 
cially as the members of another.** * The real mo- 
tives of the merchant should be taken into account. 

Of the many cases in which Marshall rendered 
opinions touching upon international law, however, 

i John Bassett Moore in Dillon, i» 524. 

s 8 Craoch, 289. * lb. 291-92. « lb. 29S. 



130 JOHN MABSHALL 

that of the Nereid ^ is perhaps the best known. The 
descriptions of the arguments in that controversy, 
and of the court when they were being made, are the 
most vivid and accurate that have been preserved 
of the Supreme Bench and the attorneys who prac- 
ticed before it at that time. Because of this fact an 
account of the hearing in this celebrated case will 
be helpful to a realization of similar scenes. 

The burning of the Capitol by the British in 1814 
left the Supreme Court without its basement room 
in that edifice; at the time the case of the Nereid 
was heard, and for two years afterward,* that tribu- 
nal held its sessions in the house of Elias Boudinot 
Caldwell, the derk of the court, on Capitol Hill.' 
Marshall and the Associate Justices sat '^inconven- 
iently at the upper end " of an uncomfortable room 
" unfit for the purpose for which it is used." * In the 
space before the court were the counsel and other 
lawyers who had gathered to hear the argument. 
Back of them were the spectators. On the occasion 
of this hearing, the room was well filled by members 
of the legal profession and by laymen, for everybody 
looked forward to a brilliant legal debate. 

Nor were these expectations vain. The question 

1 9 CriEtnch, S&Setseq. 

* Until the February session of 1817. This rocmi was not destroyed 
or injured by the fire, but was closed while the remainder of the Capi- 
tol was being repaired. In 1817, the court occupied another basement 
room in the Capitol, where it continued to meet until February, 
1819, when it returned to its old quarters in the room where the 
library of the Supreme Court is now situated. (Bryan: History qf 
the National CapUal, n, 89.) 

' 76., 1, 6Si. Mr. Bryan says that this house still stands and is now 
known as f204-06 Pennsylvania Avenue, SJB. 

« Ticknor to his father, Feb. 1815, Ticknor, i, 88. 



INTERNATIONAL LAW 181 

was as to whether a certain cargo owned by neutrals, 
but found in an enemy ship, should be restored. The 
claimants were represented by J. Ogden Ho£Pman 
of New York and the universally known and talked 
of Thomas Addis Enunet, the Irish patriot whose pa- 
thetic experiences, not less than his brilliant talents, 
appealed strongly to Americans of that day • For the 
captors appeared Alexander J. Dallas of Fenn- 
el vania and that strangest and most talented ad- 
vocate of his time, William Pinkney of Maryland, 
exquisite dandy and profound lawyer,^ a£Pected fop 
and accomplished diplomat, insolent as he was able, 
haughty ^ as he was learned. 

George Ticknor gives a vivid description of the 
judges and lawyers. Marshall's neglected clothing 
was concealed by his flowing black robes, and his im- 
kempt hair was combed, tied, and "fully powdered.** 
The Associate Justices were similarly robed and 
powdered, and all "looked dignified." Justice Bush- 
rod Washington, "a little sharp-faced gentleman 
with only one eye, and a profusion of snuff distri- 
buted over his face,*' did not, perhaps, add to the 
impressive appearance of the tribunal; but the noble 

1 ''His opinions had almost acquired the authority of judicial de- 
cisions." (Pinkney: lAJe cf WUUam Pinkney , quotation from Bobert 
Goodloe Harper on title-page.) 

' "He has . . a dogmatizing absoluteness of manner which passes 
with the million, . . for an evidence of power; and he has acquired 
with those around him a sort of papal infallibility." (Wirt to Gilmer, 
April 1, 1816, Kennedy, i, 408.) 

Wirt's estimate of Pinkney must have been influenced by profes- 
sional jealousy, for men like Story and Marshall were as profoundly 
affected by the Maryland legal genius as were the most emotional 
spectators. See the criticisms of Wirt's comments on Pinkney by his 
nephew. Rev. William Pinkney, in his l^fe qf WiUiam Pinkney, 116H22. 



132 JOHN MARSHALL 

features and stately bearing of William Johnson, 
the handsome face and erect attitude of young 
Joseph Story, and the bald-headed, scholarly look- 
ing Brockholst Livingston, sitting beside Marshall, 
adequately filled in the picture of which he was the 
center. 

Opinions were read by Marshall and Story, but 
evidently they bored the nervous Pinkney, who 
"was very restless, frequently moved his seat, and, 
when sitting, showed by the convulsive twitches of 
his face how anxious he was to come to the conflict. 
At last the judges ceased to read, and he sprang into 
the arena like a lion who has been loosed by his keep- 
ers on the gladiator that awaited him." This large, 
stout man wore "corsets to diminish his bulk,'' used 
"cosmetics • . to smooth and soften a skin growing 
somewhat wrinkled and rigid with age," and dressed 
"in a style which would be thought foppish in a 
much yoimger man." ^ His harsh, unmusical voice, 
grating and high in tone, no less than his exaggerated 
fashionable attire, at first repelled; but these defects 
were soon forgotten because of "his clear and forci- 
ble manner" of speaking, "his powerful and com- 
manding eloquence, occasionally illuminated with 
sparkling lights, but always logical and appropriate, 
and above all, his accurate and discriminating law 
knowledge, which he pours out with wonderful pre- 
cision. ' 

Aloof, affected, overbearing ' as he was, Pinkney 

^ Ticknor to his father, Feb. [day omitted] 1815, Ticknor, i, 88-40. 
< Story to Williams, Feb. 16, 1812, Story, i, 214; and March 6, 1814, 
i&. 252. 
' *' At the bar he is despotic and cares as little for hb cdleagues or 



Ay^^i^ 



INTERNATIONAL LAW 188 

overcame prejudice and compelled admiration **by 
force of eloquence, logic and legal learning and by 
the display of naked talent/' testifies Ticknor, who 
adds that Pinkney ""left behind him . . all the public 
speaking I had ever heard/' ^ Emmet, the Irish 
exile, "older in sorrows than in years/' with "an 
appearance of premature age/' and wearing a " set* 
tied melancholy in his countenance/' spoke directly 
to the point and with eloquence as persuasive as that 
of Pinkney was compelling.* Pinkney had insulted 
Enmiet in a previous argument, and Marshall was 
so apprehensive that the Irish lawyer would now 
attack his opponent that Justice Livingston had to 
reassure the Chief Justice.' 

The court was as much interested in the oratory 
as in the arguments of the counsel. Story's letters 
are rich in comment on the style and maimer of 
the leading advocates. At the hearing of a cause 
at about the same time as that of the Nereid, he tells 
his wife that Pinkney and Samuel Dexter of Massa- 
chusetts "have called crowded houses; all the belles 
of the city have attended, and have been entranced 
for hours." Dexter was "calm, collected, and for- 
cible, appealing to the judgment." Pinkney, "viva- 
cious, sparkling, and glowing," although not "as 
close in his logic as Mr. Dexter," but ''step[ping] 

adversaries as it they were men of wood.*' (Wbrt to Gilmer, April 1, 
1S16, Kenedy, i, 40S.) 

The late Boscoe Conkling was almost the reincarnation of William 
Pinkney. In extravagance of dress, haughtiness of manner, retentive- 
ness of memory, power and brilliancy of mind, and genuine eloquence, 
Pinkney and Conkling were well-nigh counterparts. 

^ Ticknor to his father, Feb. 21, 1815, Ticknor, i, 40. 

* lb. Feb. 1815, 89-40. - » Pinkney, 100-01. 



1S4 JOHN MABSHALL 

aside at will from the path, and strew[ing] flowers of 
rhetoric around him." ^ 

The attendance of women at arguments before the 
Supreme Court had as much effect on the perform- 
ance of counsel at this period as on the oratory 
delivered in House and Senate. One of the belles 
of Washington jotted down what took place on one 
such occasion. ^'Curiosity led me, . . to join the 
female crowd who throng the court room. A place 
in which I think women have no business. . . One 
day Mr. Pinckney [sic] had finished his argument 
and was just about seating himself when Mrs: Madi- 
son and a train of ladies entered, — he recommenced, 
went over the same ground, using fewer arguments, 
but scattering more flowers. And the day I was 
there I am certain he thought more of the female 
part of his audience than of the court, and on con- 
cluding, he recognized their presence, when he said, 
* He would not weary the court, by going thro a long 
list of cases to prove his argument, as it would not 
only be fatiguing to them, but inimical to the laws 
of good taste, which on the present occasion, (bowing 
low) he wished to obey.*' * 

1 Story to his wife, Maich 10, 1814, Story, i, 253. 

* Mrs. Samuel Harrison Smith to Mrs. Kirkpatrick, March IS, 
1814, Firti Forty Years cf Washington Society: Hunt, 96. 

Pinkney especially would become eloquent, even in an argument 
of dry, commercial law, if women entered the court-room. ''There 
were ladies present — and Pinkney was expected to be eloquent at all 
events. So, the mode he adopted was to get into his tragical tone in 
discussing the construction of an act of Congress. Closing his speech 
in this solenm tone he took his seat, saying to me, with a smile — 
* that will do for the ladies. ' " (Wirt to Gihner, AprU 1, 1816, Kennedy, 
I, 404.) 

The presence of women affected others no less than Pinkney. ''Web- 



INTERNATIONAL LAW 185 

This, then, is a fairly accurate picture of the 
Supreme Court of the United States when the great 
arguments were made before it and its judgments 
delivered through the historic opinions of Marshall 
— such the conduct of counsel, the appearance of 
the Justices, the auditors in attendance. Always, 
then, when thinking of the hearings in the Supreme 
Court while he was Chief Justice, we must bear in 
mind some such scene as that just described. 

William Pinkney, the incomparable and enig- 
matic, passed away in time; but his place was taken 
by Daniel Webster, as able if not so accomplished, 
quite as interesting from the human point of view, 
and almost as picturesque. The lively, virile Clay 
succeeded the solid and methodical Dexter; and a 
procession of other eminent statesmen files past our 
eyes in the wake of those whose distinction for the 
moment had persuaded their admirers that their 
equals never would be seen again. It is essential to 
an understanding of the time that we firmly fix in 
our minds that the lawyers, no less than the judges, 
of that day, were publicists as well as lawyers. They 
were, indeed, statesmen, having deep in their minds 
the well-being of their Nation even more than the 
success of their clients. 

Briefly stated, the facts in the case of the Nereid 
were as foUows: More than a year after our second 
war with Great Britain had begun, one Manuel Pinto 
of Buenos Aires chartered the heavily armed British 

ster, Wirt, Taney • • and Emmet, are the combatants, and a bevy of 
ladies are the promised and brilliant distributors of the prizes," wri^s 
Story of an argument in the Supreme Court many years later. (Story 
to Fay, March S, 1826, Story, i, 498.) 



ISO JOHN MABSHALL 

mepchant ship, the Nereid, to take a cargo from Lon- 
don to the South American city and another back 
to the British metropolis. The Nereid sailed under 
the protection of a British naval convoy. The out- 
going cargo belonged partly to Pinto, partly to other 
Spaniards, and partly to British subjects. When ap- 
proaching Madeira an American privateer attacked 
the Nereid and, after a brief fight, captured the Brit- 
ish vessel and took her to New York as a prize. The 
British part of the cargo was condemned without 
contest. That part belonging to Pinto and the other 
Spaniards was also awarded to the captors, but over 
the earnest opposition of the owners, who appealed 
to the Supreme Court. The arguments before the 
Supreme Court were long and uncommonly able. 
Those of Pinkney and Emmet, however, contained 
much florid "eloquence." ^ 

Space permits no summary of these addresses; the 
most that can be given here is the substance of Mar- 
shall's very long and tedious opinion which is of no 
historical interest, except that part of it dealing with 
international law. The Chief Justice stated this cap- 
ital question: "Does the treaty between Spain and 
the United States subject the goods of either party, 
being neutral, to condemnation as enemy property, 
if found by the other in a vessel of an enemy? That 
treaty stipulates that neutral bottoms shall make 
neutral goods, but contains no stipulation that en- 
emy bottoms shall communicate the hostile character 
to the cargo. It is contended by the captors that the 

' This is illustrated by the passage in Pinkney's aigument to which 
Marshall in his (pinion paid such a remarkable tribute (see urfra, 141). 



INTERNATIONAL LAW 187 

two principles are so completely identified that the 
stipulation of the one necessarily includes the other/' 

It was, said Marshall, '^a part of the original law 
of nations " that enemy goods in friendly vessels " are 
prize of war/' and that friendly goods in enemy ves- 
sels must be restored if captured. The reason of this 
rule was that ^' war gives a full right to captiu^ the 
goods of an enemy, but gives no right to captiu^ 
the goods of a friend/' Just as ^^the neutral flag con- 
stitutes no protection to enemy property/' so "the 
belligerent flag communicates no hostile character to 
neutral property/' The nature of the cargo, there- 
fore, "depends in no degree" upon the ship that 
carries it.^ 

Unless treaties espressly modified this immemorial 
law of nations there would, declared Marshall, " seem 
to be no necessity" to suppose that an exception was 
intended. "Treaties are formed upon deUberate re- 
flection"; if they do not specifically designate that 
a particular item is to be taken out of the "ancient 
rule," it remains within it. "The agreement [in the 
Spanish treaty] that neutral bottoms shall make neu- 
tral goods is . • a concession made by the belligerent 
to the neutral"; as such it is to be encouraged since 
*'it enlarges the sphere of neutral commerce, and 
gives to the neutral flag a capacity not given to it 
by the law of nations." 

On the contrary, a treaty " stipulation which sub- 
jects neutral property, found in the bottom of an en- 
emy, to condemnation as prize of war, is a concession 
made by the neutral to the belligerent. It narrows 

i 9 Crancfa, 41&-19. 



188 JOHN MARSHALL 

the sphere of neutral commerce, and takes from the 
neutral a privilege he possessed under the law of na- 
tions." However, a government can make whatever 
contracts with another that it may wish to make. 
^^What shall restrain independent nations from 
making such a compact'' as they please? ^ 

Suppose that, regardless of ^^ our treaty with Spain, 
considered as an independent measure, the ordi- 
nances of that government would subject American 
property, under similar circumstances, to confisca- 
tion/' Ought Spanish property, for that reason, to be 
"condenmedasprizeof war"? That was not a ques- 
tion for courts to decide: "Reciprocating to the sub- 
jects of a nation, or retaliating on them its unjust 
proceedings towards our citizens, is a political, not a 
l^al measure. It is for the consideration of the gov- 
ernment, not of its courts. The degree and the kind 
of retaliation depend entirely on considerations for- 
eign to this tribunal." 

The Government is absolutely free to do what it 
thinks best: "It is not for its courts to interfere with 
the proceedings of the nation and to thwart its views. 
It is not for us to depart from the beaten track pre- 
scribed for us, and to tread the devious and intricate 
path of politics." He and his associates had no diffi- 
culty, said Marshall, in arriving at these conclusions. 
"The line of partition" between "belligerent rights 
and neutral privileges" is "not so distinctly marked 
as to be clearly discernible." * Nevertheless, the 
neutral part of the Nereid's cargo must "be gov- 
erned by the principles which would apply to it had 

^ 9 Cranch, 419-120. * lb. 4StfHtS. 



INTERNATIONAL LAW 189 

the Nereid been a general ship." That she was armed, 
that she fought to resist capture, did not charge the 
cargo with the belligerency of the ship, since the 
owners of the cargo had nothing to do with her 
armed equipment or belligerent conduct. 

It is ^'universally recognized as the original rule 
of the law of nations" that a neutral may ship his 
goods on a belligerent vessel. This right is "'founded 
on the plain and simple principle that the property 
of a friend remains his property wherever it may be 
found." * That it is lodged in an armed belligerent 
ship does not take it out of this universal rule. The 
plain truth is, declares Marshall, that '" a belligerent 
has a perfect right to arm in his own defense; and a 
neutral has a perfect right to transport his goods 
in a belligerent vessel." Such merchandise 'Moes 
not cease to be neutral " because placed on an armed 
belligerent ship, nor when that vessel exercises the 
undoubted belligerent right forcibly to resist capture 
by the enemy. 

Shipping goods on an armed belligerent ship does 
not defeat or even impair the right of search. " What 
is this right of search? Is it a substantive and inde- 
pendent right wantonly, and in the pride of power, 
to vex and harass neutral commerce, because there is 
a capacity to do so?" No! It is a right "essential . . 
to the exercise of . . a full and perfect right to cap- 
ture enemy goods and articles going to their enemy 
which are contraband of war. • • It is a mean justi- 
fied by the end," and "a right . . andllary to the 
greater right of capture." 

^ 9 Cnmch, 425. 



140 JOHNMABSHALL 

For a neutral to place '^ his goods in the vessel of an 
armed enemy " does not connect him with that en- 
emy or give him a " hostile character." Armed or un- 
armed, ''it is the right and the duty of the carrier to 
avoid capture and to prevent a search/' Neither 
arming nor resistance is ''chargeable to the goods or 
their owner, where he has taken no part" in either.^ 
Pinkney had cited two historical episodes, but Mar- 
shall waved these aside as of no bearing on the case. 
"If the neutral character of the goods is forfeited by 
the resistance of the belligerent vessel, why is not the 
neutral character of the passengers," who did not en- 
gage in the conflict, "forfeited by the same cause? " * 

In the^case of the Nereid, the goods of the neutral 
shipper were inviolable. Pinkney had drawn a horrid 
picture of the ship, partly warlike, partly peaceful, 
displaying either character as safety or profit dic- 
tated.' But, answers Marshall, falling into something 

^ 9 Cranch, 426-^. * lb. 42S-S9. 

* ** We . . have Neutrality, boH and gentle and def enodess in hefself » 
yet dad in the panoply of her warlike neighbours — with the frown of 
defiance upon her brow, and the smile of conciliation upon her lip — 
with the spear of AchiUes in one hand and a lying protestation of in- 
nocence and helplessness unfolded in the other. Nay, • • we shall have 
the branch of oUve entwined around the bolt of Jove, and Neutrality 
in the act of huriing the latter under the deceitful coverof the former. . . 

''Call you that Neutrality which thus conceals beneath its appro- 
priate vestment the giant limbs of War, and converts the charter-party 
of the compting-house into a commission of marque and reprisals; 
which makes of neutral trade a laboratory of belligerent annoyance; 
which • • warms a torpid serpent into life, and places it beneath the 
footsteps of a friend with a more appalling lustre on its crestand added 
venom in its sting." (Wheaton: Some Account qf the Lffe, Writings, 
and Speeches qf William Pinkney, 468, 466.) 

Pinkney frankly said that his metaphors, ''hastily conceived and 
hazarded," were inspired by the presence of women ''of this mixed 
and (for a court of judicature) uncommon audience." (76. 464--65.) 

Except for this eidiibition of rodomontade his address was a wonder* 



INTERNATIONAL LAW 141 

like the rhetoric of his youth,^ ''the Nereid has not 
that centaur-like appearance which has been as- 
cribed to her. She does not rove over the ocean hurl- 
ing the thunders of war while sheltered by the olive 
branch of peace/' Her character is not part neutral, 
part hostile. '" She is an open and declared belliger- 
ent; claiming all the rights, and subject to all the 
dangers of the belligerent character." One of these 
rights is to carry neutral goods which were subject 
to ''the hazard of being taken into port" in case of 
the vessel's capture — in the event of which they 
would merely be "obliged to seek another convey- 
ance." The ship might lawfully be captured and 
condemned; but the neutral cargo within it re- 
mained neutral, could not be forfeited, and must be 
returned to its owners.* 

But Marshall anoints the wounds of the de- 
feated Pinkney with a tribute to the skill and beauty 
of his oratory and argument: "With a pencil dipped 
in the most vivid colors, and guided by the hand 
of a master, a splendid portrait has been drawn ex- 
hibiting this vessel and her freighter as forming a 
single figure, composed of the most discordant ma- 
terials of peace and war. So exquisite was the skill 
of the artist, so dazzling the garb in which the figure 
was presented, that it required the exercise of that 
cold investigating faculty which ought always to be- 
long to those who sit on this bench, to discover its 
only imperfection; its want of resemblance." ^ 



ful display of reasoning and erudition. His brief perorati<Hi was elo- 
quence of the noblest order. (See entire speech* Wheaton: PifUoMy^ 
465-616.) 

1 Seevd.i,72,195»ofthiswork. * 9 Cranch, 480-81. * A. 48a 



/ 



142 JOHN MABSHALL 

Such are examples of Marshall's expositions of 
international law and typical illustrations of his 
method in statement and reasoning. His opinion in 
the case of the Nereid is notable, too, because Story 
dissented ^ — and for Joseph Story to disagree with 
John Marshall was a rare event. Justice Living- 
ston also disagreed, and the British High Court of 
Admiralty maintained the contrary doctrine. But 
the principle announced by Marshall; that enemy 
bottoms do not make enemy goods and that neutral 
property is sacred, remained and still remains the 
American doctrine. Indeed, by the Declaration of 
Paris in 1856, the principle thus announced by Mar- 
shall in 1815 is now the accepted doctrine of the 
whole world. 

Closely akin to the statesmanship displayed in his 
pronouncements upon international law, was his as- 
sertion, in Insurance Co. vs. Canter,* that the Na- 
tion has power to acquire and to govern territory. 
The facts of this case were that a ship with a cargo 
of cotton, which was insured, was wrecked on the 
coast of Florida after that territory had been ceded 
to the United States and before it became a State of 
the Union. The cotton was saved, and taken to Key 
West, where, by order of a local court acting under 

^ ''Never in my whole life was I mare entirely satisfied Uiat the 
Court were wrong in their judgment. I h<^ Mr. Pinkney will . • pub- 
lish his admirable argument . • it will do him immortal honor." (Story 
to Williams, May 8, 1815, Story, i, %50.) 

Exactly the same question as that decided in the case of the Nereid 
was again brought before the Supreme Court two years later in the 
case of the Atalanta. (S Wheaton, 409.) Marshall merely stated that 
the former decision governed the case. (lb. 415.) 

* The American Insurance Company et aL w, David Canter, 1 
Peters, 511-46. 



INTERNATIONAL LAW 148 

a Territorial law, it was sold at auction to satisfy 
claims for salvage. Part of the cotton was purchased 
by one David Canter, who shipped it to Charleston, 
South Carolina, where the insurance companies li^ 
beled it. The libelants contended, among other 
things, that the Florida court was not competent to 
order the auction sale because the Territorial act 
was "inconsistent** with the National Constitution. 
After a sharp and determined contest in the District 
and Circuit Courts of the United States at Charles- 
ton, in which Canter finally prevailed, the case was 
taken to the Supreme Court.* 

Was the Territorial act, under which the local 
court at Key West ordered the auction sale, valid? 
The answer to that question, said Marshall, in de- 
livering the opinion of the court, depends upon "'the 
relation in which Florida stands to the United 
States.*' Since the National Government can make 
war and conclude treaties, it follows that it "^pos- 
sesses the power of acquiring territory either by con- 
quest or treaty . . Ceded territory becomes a part 
of the nation to which it is annexed ** ; but " the re- 
lations of the inhabitants to each other [do not] un- 
dergo any change/* Their allegiance is transferred ; 
but the law ** which regulates the intercourse and 
general conduct of individuals remains in force until 
altered by the newly created power of the state.** * 

The treaty by which Spain ceded Florida to the 
United States assures to the people living in that 
Territory "the enjoyment of the privileges, rights, 
and immunities** of American citizens; ''they do not 

» 1 Peters, 511-46. * lb. 54«. 



144 JOHN MABSHALL 

however, participate in political power; they do not 
share in the government till Florida shall become 
a state. In the meantime Florida continues to be a 
Territory of the United States, governed by virtue 
of that clause in the Constitution which empowers 
Congress 'to make all needful rules & regulations 
respecting the territory or other property belonging 
to the United States/" ^ 

The Florida salvage act is not violative of the Con- 
stitution. The courts upon which that law confers 
jurisdiction are not "Constitutional Courts; . . they 
are legislative Courts, created in virtue of the gen- 
eral right of sovereignty which exists in the gov- 
ernment, or in virtue of that clause which enables 
Congrep to make all needful rules and regulations re- 
spectiw the territory belonging to the United States. 
• • ANuiough admiralty jurisdiction can be exercised, 
in the States, in those courts only " which are au- 
thorized by the Constitution, the same limitation 
does not extend to the Territories. In legislating for 
them. Congress exercises the combined powers of the 
general and of a state government.* 
I Admirable and formative as were Marshall's opin*- 
ions of the law of nations, they received no attention 
from the people, no opposition from the politicians, 
and were generally approved by the bar. At the very 
next term of the Supreme Court, after the decision 
in the case of the Nereid, an opinion was delivered 
by Story that aroused more contention and had 
greater effect on the American Nation than had all 
the decisions of the Supreme Court on international 

^ 1 Peters, 542. * lb. 546. 



INTERNATIONAL LAW 



145 






.V 



law up to that time. This was the opinion in the 
famous case of Martin vs. Hunter's Lessee. 

It was Story's first exposition of Constitutional 
law and it closely resembles Marshall's best inteipre- 
tations of the Constitution. So conspicuous is this 
fact that the bench and bar generally have adopted 
the view that the Chief Justice was, in effect, the 
spiritual author of this commanding judicial utter- 
ance.^ But Story had now been by Marshall's side 
on the Supreme Bench for four years and, in his ar- 
dent way, had become more strenuously Nationalist, 
at least in expression, than Marshall.^ 

That the Chief Justice himself did not deliver this 
opinion was due to the circumstance that his brother, 
James M. MarshaU, was involved in the controven^; 
was, indeed, a real party in interest. This fact, to- 
gether with the personal hatred of Marshall by the 
head of the Virginia Republican organization, had 
much to do with the stirring events that attended 
and followed this litigation. 

^ Story wrote George Tkkrujir that MftTHhall ** concurred in every 
word of it'' (Story to Ticknor, Jan. 9St, ISSl, Story» n, 49.) 

* *'Let us extend the national authority over the whole extent of 
power given by the Constitution. Let us have great military and naval 
flchods; an adequate regular army; the broad foundatbna laid of a 
pennanent navy; a national bank; a national ^stem of bankrupt<^; a 
great navigation act; a general survey of our ports, and appointments 
of port-wardens and pilots; Judicial Courts which shall embrace the 
• • justices of the peace, for the commercial and national concerns of 
the United States. By such enlarged and liberal institutions, the Gov- 
ernment of the United States will be endeared to the people • . Let us 
prevent the possibility of a division, by creating great national inter- 
ests which shall bind us in an indissoluble chain." (Story to Williams, 
Feb. 9St, 1S15, ib. i, 254.) 

Later in the same year Story repeated these views and added: ^'I 
most sincerely hope that a national newspaper may be established at 
Washington." (Story to Wheaton, Dec. 18, 1815, ib. 270-71.) 



C 



146 JOHN MABSHALL 

At the time of the Fairfax-rHunter controversy, 
Virginia was governed by one of the most efficient 
party organizations ever developed under free insti- 
tutions. Its head was Spencer Roane, President of 
the Court of Appeals, the highest tribunal in the 
State, an able and learned man of strong prejudices 
and domineering character. Jefferson had intended 
to appoint Roane Chief Justice of the United States 
upon the expected retirement of Ellsworth.^ But 
Ellsworth's timely resignation gave Adams the op- 
portunity to appoint Marshall. Thus Roane's high- 
est ambition was destroyed and his lifelong dislike of 
Marshall became a personal and a virulent animosity. 

Roane was supported by his cousin, Thomas 
Ritchie, editor of the Richmond Enquirer ^ the most 
influential of Southern newspapers, and, indeed, one 
of the most powerful joiunals in the Nation. An- 
other of the Virginia junto was John Taylor of Caro- 
line County, a brilliant, unselfish, and sincere man. 
Back of this triumvirate was Thomas Jefferson with 
his immense popularity and his unrivaled political 
sagacity. These men were the commanding officers 
of a self-perpetuating governmental system based 
on the smallest political unit, the County Courts. 
These courts were made up of justices of the peace 
appointed by the Governor. Vacancies in the County 
Courts were filled only on the recommendation of the 
remaining members.* These justices of the peace 
also named the men to be sent to the State Legisla- 
]ture which appointed the Governor and also chose 

> Professor WQliam E. Dodd, in Am. HiH. Rev. xn, 776. 
* For fuller description of the Virginia County Court system, see 
chi^. IX of this volume. 



INTERNATIONAL LAW 147 

the members of the Court of Appeals who held office 
for life.^ A perfect circle of political action was thus 
formed, the permanent and controlling center of 
which was the Court of Appeals. 

These, then, were the judge, the court, and the 
party organization which now defied the Supreme 
Court of the United States. By one of those curious 
jumbles by which Fate confuses mortals, the excuse 
for this defiance of Nationalism by Localism arose 
from a land investment by Marshall and his brother. 
Thus the fact of the purchase of the larger part of 
the Fairfax estate * is woven into the Constitutional 
development of the Nation. 

Five years before the Marshall syndicate made 
this investment,' one David Hunter obtained from 
Virginia a grant of seven hundred and eighty-eight 
acres of that part of the Fairfax holdings known as 
^' waste and ungranted land." ^ The grant was made 
imder the various confiscatory acts of the Virginia 
Legislature passed during the Revolution. These 
acts had not been carried into effect, however, and 
in 1783 the Treaty of Peace put an end to subsequent 
proceedings under them. 

Denny Martin Fairfax, the devisee of Lord Fair- 
fax, denied the validity of Hunter's grant from the \ 

^ On the Virginia Republican machine, Boane, Ritchie, etc., see 
Dodd in Am. Eiat. Rev. xn, 77d-77; and in Branch Hist. Papers^ June, 
1908, i^; Smith in 16. June, 1905, 15; Thrift in ib. June, 1908, IBS; 
also Dodd: StaUnnen cf the OH Soidh, 70 et seq.; Anderson, S05; 
Turner: Rise qf the New West, 60; Ambler: Ritchie, ^7, S^. 

* Several thousand acres of the Fairfax estate were not included in 
this joint purchase. (See infra, 150.) 

« 1793-94. See vol. n, 2012-11, of this work. 

^ April 80, 1789. See Hunter vs. Fairfax's Devisee* 1 Munford, 
228. 



U8 JOHN MARSHALL 

State on the ground that Virginia did not execute 
her confiscatory statutes during the war, and that all 
lands and property to which those laws applied were 
protected by the iSreaty of Peace. In 1791, two years 
after he obtained his grant and eight years after the 
ratification of the treaty. Hunter brought suit in 
the Superior Court at Winchester ^ against Fairfax's 
devisee for the recovery of the land. The action was 
under the ancient form of l^al procedure still prac- 
ticed, and bore the title of "Timothy Trititle, Lessee 
of David Hunter, vs. Denny Fairfax," Devisee of 
Thomas, Lord Fairfax.^ The facts were agreed to by 
the parties and, on April 24, 1794, the court decided 
against Hunter,' who appealed to the Court of Ap- 
peals at Richmond.^ Two years later, in May, 1796, 
the case was argued before Judges Roane, Fleming, 
Lyons, and Carrington.' Meanwhile the Jay Treaty 
had been ratified, thus confirming the guarantees of 
the Treaty of Peace to the holders of titles of lands 
which Virginia, in her confiscatory acts, had declared 
forfeited. 

At the winter session, 1796-97, of the Virginia 
L^islature, Marshall, acting for his brother and 

1 For the district composed of IVederick» Bericdey» Hampshire, 
Hardy» ami Shemmdoah Ck>unties. 

* Order Book* Superior Court, No. 2, 48, Qflke of Clerk of Ciicait 
Court, Frederick Co., Winchester, Va. 

* The judges remlering this decision were St. George Tudcer and 
William Nelson, Jr. (/&.) 

^ In making out the noord for appeal the fictitious name of Timo- 
thy Trititle was, of course, omitted, so that in the Court of Appeals 
and in the appeals to the Supreme Court of the United States the title 
of the case is Hunter ot. Fairfax's Devisee, instead of ''Timothy Tri- 
title, Lessee of David Hunter/' m. Fairfax's Devisee, and Martin m. 
Hunter's Lessee. 

* 1 Munf<^ ftSt». 



INTEBNATIONAL lAW 149 

brothar-in-Iaw, as weU as for himself, agreed to exe- 
cute deeds to relinquish their joint claims ^'to the 
waste and unappropriated lands in the Northern 
Neck'' upon condition that the State would confirm 
the Fairfax title to lands specifically appropriated ^ 
by Lord Fairfax or by his devisee. But for the state- 
ment made many years later by Judges Roane and 
Fleming, of the Court of Appeals, that this adjust- 
ment covered the land claimed by Hunter, it would 
appear that Marshall did not intend to include it in 
the compromise,^ even if, as seems improbable, it was 
a part of the Marshall syndicate's purchase; for the 
decision of the court at Winchester had been against 
Hunter, and after that decision and before the com- 
promise, the Jay Treaty had settled the question of 
title. 

On October 18, 1806, the Marshall syndicate, hav- 
ing finally made the remaining payments for that 
part of the Fairfax estate purchased by it — fourteen 
thousand pounds in all — Philip Martin, the devisee 
of Denny M. Fairfax, executed his warranty to John 
and James M. Marshall and their brother-in-law, 
Bawleigh Colston; and this deed was duly recorded 
in Fauquier, Warren, Frederick, and Shenandoah 

^ See vol. n» footnote to 209» of this work. 

* The adjustment was made because of the memorial of about two 
hundred settlers or squatters (mostly Germans) on the wild lands who 
petitioned the Legislature to establish title in them. David Hunter was 
not one of these petitioners. Marshall agreed to execute deeds ''ex- 
tinguishing" the Fairfax title ''so soon as the conveyance shall be 
transmitted to me from Mr. Fairfax.'* (Marshall to the Speaker of the 
House of Delegates, Va., Nov. 24, 1796. See vol. n, footnote to 209, 
of this work.) The Fairfax deed to the Marshalls was not executed 
until ten years after this compronuse. (Land Causes, 1888, 40, Bec- 
ocds in Qflke of Clerk of Circuit Court* Fauquier Co., Va.) 



150 JOHN MARSHALL 

Counties, where the Fairfax lands were situated-^ 
Nearly ten years before this conveyance, James M. 
Marshall separately had purchased from Denny 
Martin Fairfax large quantities of land in Shenan- 
doah and Hardy Counties where the Hunter grant 
probably was situated.* 

^ Two years later, on October 5, 1808, the Marshall brothers ef- 
f acted a partition oi the estate between themselves on the one part 
and their brother-in-law on the other part, the latter receiving about 
forty thousand acres. (Deed Book 36, 80S, Reo(»ds in Office d Clerk 
of Circuit Court, Frederick Co., Va.) 

' On Aiigust SO, 1797, Denny Martin Fair&x conveyed to James M. 
Marshall all the Fairfax lands in Virginia ''save and except • . the 
manor of Leeds." (See Marshall vs. Conrad, 5 Call, 864.) Thereafter 
James M. Marshall lived in Winchester for several years and made 
many conveyances of land in Shenandoah and Berkeley Counties. 
For instance, Nov. li, 1798, to Charles Lee, Deed Book 8, 684, 
Records in Office of Clerk <ii Circuit Court, Frederick County, Va.; 
Jan. 9, 1799, to Henry Richards, ib. 549; Feb. 4, 1799, to Joseph Baker, 
Deed Book 25, ib. 561; March 80, 1799, to Richard Miller, Deed 
Book 8, ib. 602, etc 

All of these deeds by James M. Marshall and Hester, his wife, re- 
cite that these tracts and lots are parts oi the lands conveyed to James 
M. Marshall by Denny Martin Fairfax on August 80, 1797. John Mar- 
shall does not join in any of these deeds. Apparently, therefore, he had 
no personal interest in the tract claimed by Hunter. 

In a letter to his brother Marshall speaks of the Shenandoah lands 
as bdonging to James M. Marshall: ''With respect to the rents due 
Denny Fairfax before the conveyance to you I should suppose a re- 
covery could only be defeated by the circumstance that they passed 
to you by the deed conveying Ihe land." (Marshall to his brother, 
Feb. 18, 1806, MS.) 

At the time when the Fairfax heir, Philip Martin, executed a deed 
to the Marshall brothers and Rawlei^ Colston, conveying to them the 
Manor of Leeds, the lands involved in the Himter case had been owned 
by James M. Marshall exclusively for nearly ten years. 

After the partition with Colston, October 5, 1808, John and James 
M. Marshall, on September 5, 1809, made a partial division between 
themselves of Leeds Manor, and Goony Run Manor in Shenandoah 
County, the latter going to James M. Marshall. 

These records apparently establish the facts that the ''c<Hnpromise" 
of 1796 was not intended to include the land claimed by Hunter; that 
James M. Marshall personally owned most of the lands about Win- 



INTERNATIONAL LAW 151 

It would seem that James M* Marshall continued 
in peaceful possession of the land, the title to which 
the Winchester court had decreed to be in the Fairfax 
devisee and not in Hunter. When Denny M. Fairfax 
died, he devised his estate to his younger brother ^ 
Major-General Philip Martin. About the same time 
he made James M. Marshall his administrator, with 
the will annexed, apparently for the purpose of en- 
abling him to collect old rents.^ For thirteen years 
and six months the case of Hunter vs. Fairfax's Dev- 
isee slumbered in the drowsy archives of the Virginia 
Court of Appeals. In the autiunn of 1809, however. 
Hunter demanded a hearing of it and, on October 
25, of that year, it was reargued.* Hunter was repre- 
sented by John Wickham, then the acknowledged 
leader of the Virginia bar, and by another lawyer 
named Williams.^ Daniel Call appeared for the 
Fairfax devisee. 

Chester; and that John Marshall had no personal mterest whatever in 
the land m controversy m the litigation under review. 

This explains the refusal of the Supreme Court, including even 
Justice Johnson» to take notice of the compromise of 1796. (See 
t70*a, 157.) 

^ When Lord Fairfax devised his Virginia estate to his nephew, 
Denny Martin, he required him to take the name of Fairfax. 

* (Mer Book, Superior Court of Frederick Co. Va., m, 721. 

* 1 Mimford, 228. The record states that Judge Tucker did not sit 
on account of his near relationship to a person interested. 

^ It should be repeated that David Hunter was not one of the des- 
titute settlers who appealed to the Legislature in 1796. From the rec- 
ords it would appear that he was a veiy prosperous farmer and land- 
owner who could well afford to employ the best legal counsel, as he did 
throughout the entire litigation. As early as 1771 we find him selling 
to Edward Beeson 536 acres of land in Frederick County. (Deed Book 
15, 213, Office of Clerk oi Circuit Court, Frederick County, Va.) The 
same Hunter also sold cattle, farming implements, etc., to a large 
amount. (Deeds dated Nov. 2, 1771, Deed Book cited above, 279, 280.) 

These transactions took place eighteen years before Hunter secure^ 



\ 



18ft JOHN MARSHALL 

The following spring ^ the Court of Appeals de- 
cided in favor of Hunter, reversing the judgment of 
the lower court rendered more than sixteen years 
before. In his opinion Roane, revealing his animosity 
to Marshall, declared that the compromise of 1796 
covered the case. ^^I can never consent that the ap- 
pellees,^ after having got the benefit thereof, should 
refuse to submit thereto, or pay the equivalent; the 
consequence of which would be, that the Common- 
wealth would have to remunerate the appellant for 
the land recovered from him! Such a course can- 
not be justified on the principles of justice and good 
faith; and, I confess, I was not a little surprised 
that the objection should have been raised in the 
case before us.*' * 

from ^nrginia the grant of Fairfax lands, twenty-five yean before tbe 
Biarshall compromiBe of 1790, thirty-eight years bdfore Hunter em- 
ployed Widcham to revive his appeal against tiie Fair&x devi8ee»fbrfy- 
two years prior to the first arguments before the Supreme G>urt, and 
f orty^^ve years before the final argument and dedskm of the famous 
case of Martin ve, Hunter^s Lessee. So, far fitnn being a poor, strug- 
^ing, submissive, and oppressed settler, David Hunter was one of 
the most well-to-do, acquisitive, determined, and aggressive men in 
Virginia* 

1 April 2S, 1810. 

s By using the plural ^appdlees," Boane apparently intimates 
that Marshall was personally interested in the case; as we have 
seien, he was not. There was of record but one appdlee, the Fairfax 



* 1 Munford, 9SfL 

The last two lines of Boane*s language are not dear, but it would 
seem that the ''objection'* must have been that the Marshall com- 
promise did not indude the land daimed by Hunter and others, the 
title to which had been adjudged to be in Fairfax's devisee before the 
compromise. This is, indeed, probably the meaning of the sentence 
of Roane's opinion; otherwise it is obscure. It would appear certain 
that the Fairfax purchasers did make just this objection. Certainly 
they would have been foolish not to have done so if the Hunter land 
was not embraced in the ccmipromise. 



INTERNATIONAL LAW 158 

To this judgment the Fairfax devisee ^ obtained 
from the Supreme Court of the United States ' a writ 
of error to the Virginia court under Section 25 of 
the Ellsworth Judiciary Act, upon the ground that 
the case involved the construction of the Treaty of 
Peace with Great Britain and the Jay Treaty, the 
Virginia court having held against the right claimed 
by Fairfax's devisee under those treaties.' 

The Supreme Court now consisted of two Federal- 
ists, Washington and Marshall, and five Republic 
cans, Johnson, Livingston, Story, and Duval; and 
Todd, who was absent from illness at the decision 
of this cause. Marshall declined to sit during the ar-* 
guments, or to participate in the deliberations and 



^ Since James BL Marshall was the American administrator of the 
win of Denny M. Fairfax, and also had long po ssesse d all the rights and 
title of the Eabfaz heir to this particular land, it doubtless was he 
who secured the writ of error from the Supreme Court. 

s 1 Munford, 2SS. 

* 7 Cranch, 608-00, 612. The reader should bear m mind the pro- 
visimis of Secticm 25 of the Judiciary Act, since the validity and mean- 
ing of it are involved in some of the greatest controversies hereafter 
discussed. The part of that section which was in controversy is as 
follows: 

''A final judgment or decree in any suit, in the highest court of law 
or equity of a state in which a decisjoo in the suit could be had, where 
is drawn in question the validity of a treaty or statute of, or an author^ 
ity exercised under the United States, and the dedsicm is against their 
validity ; or where is drawn in question the validity of a statute of , or an 
authority exercised under any state, on the ground of their being re* 
pugnant to the constitution, treaties or laws of the United States, and 
the decision is in favor of such their validity; or where is drawn in 
question the construction of any dause of the ccmstitution, or of a 
treaty, or statute of, or commission held under the United States, and 
the decision is against the title, right, privilege or exemption specially 
set up or daimed by either party, under sudi clause of the^said con- 
stitution, treaty, statute or commission, may be re-examined and re* 
versed or affirmed in the supreme court of the United States upon a 




r." 






154 JOHN MABSHALL 

conclusions of his associates. Indeed, throughout 
this litigation the Chief Justice may almost be said 
to have leaned backward. It was with good reason 
that Henry S. Randall, the biographer and apologist 
of JefiFa*son, went out of his way to laud Marshall's 

stainless private character'' and pay tribute to his 

austere public and private virtue." ^ 

Eight years before the Hunter-Fairfax contro- 
versy was first brought to the Supreme Coxui;, the 
case of the Granville heirs against William R. Davie, 
Nathaniel Allen, and Josiah Collins, was tried at the 
June term, 1805, of the United States Court at 
Raleigh, North Carolina. Marshall, as Circuit Judge, 
sat with Potter, District Judge. The question was 
precisely that involved in the Fairfax title. The 
grant to Lord Granville * was the same as that to 
Lord Fairfax.' North Carolina had passed the s^me 
confiscatory acts against alien holdings as Virginia.^ 
Under these statutes, Davie, Allen, and Collins ob- 
tained grants to parts of the Granville estate ^ iden- 
tical with that of Hunter to a part of the Fairfax 
estate in Virginia. 

Here was an excellent opportunity for Marshall 
to decide the Fairfax controversy once and for all. 
Nowhere was his reputation at that time higher than 
in North Carolina, nowhere was he more admired 
and trusted.^ That his opinion would have been ac- 

1 Bandall» n, $5-S6. 

* For a full and painstakmg account of the Granville grant, and the 
legislation and litigation growing out of it, see Henry G. G>nnor in 
UnweraUy of Pennsylvania Law RevieWf vol. 62, 671 et aeq. 

* See vol. 1, 19J^, of this work. 

* Connor in JJnio. of Pa. Law Rev. vol. 6£, 674-75. 

* lb. 676. * See tupra^ 69. 



INTERNATIONAL LAW 155 

cepted by the State authorities and acquiesced in by 
the i)eople, there can be no doubt. ^ But the Chief 
Justice flatly stated that he would take no part in 
the trial because of an ^^opinion • . formed when he 
was very deeply interested (alluding to the cause of 
Lord Fairfax in Virginia). He could not consistently 
with his duty and the delicacy he felt, give an opin- 
ion in the cause." ^ 

^ This highly hnportant fact is proved by the message of Governor 
David Stone to the Legislature <ii North Carolina in whidi he devotes 
much space to the Granville litigation and recommends "early provi- 
sion to meet the justice of the claim of her [North Carolina's] citizens 
for remuneration in case of a dedsicm against the sufficiency of the 
title derived from herself/* The ''possibility" of sudi a decision is ap- 
parent ''when it is generally understood that a greatly and deservedly 
distinguished member of that [the Supreme] Court, has already formed 
an unfavoraUe opinion, will probably enforce the consideration that 
it is proper to make some eventual provision, by which the pur- 
diasers from the State, and those holding under that purchase, may 
have justice daae them." (Connor in Unw, qf Pa. Law Rev. vol. 62, 
690-91.) 

From this message of Governor Stone it is dear that the State ex- 
pected a decision in favor of the Granville heirs, and that the Legisia- 
ture and State authorities were preparing to submit to that decision. 

* Raleigh Register, June 24, 1805, as quoted by Connor in Univ. of 
Pa. Law Rev. vol. 62, 689. 

The jury found against the Granville heirs. A Mr. London, the 
Granville agent at Wilmingtim, still hoped for success: "The favorable 
sentiments of Judge Marshall encourage me to hope that we shaU 
finally succeed," he writes William Gaston, the Granville counsel. 
Neverthdess, "I think the Judge's reasons for withdrawing from the 
cause partakes more <ii pditical acquiescence than the dignified, offi- 
cial independence we had a right to expect from his character. He 
said enough to convince our oppcments he was unfavorable to their 
construction of the law and, therefore, should not have permitted in- 
correct principles to harass our clients and create* expensive delays. 
Mr. Marshall had certainly no interest in our caiise, he ought to have 
governed the proceedings of a Court over whidi he presided, according 
to such opinion — it has very much the appearance of shirking to popu- 
lar impressions." 

London ordered an appeal to be taken to the Supreme Court of the 
United States, remarking that "it is no doubt much in our favor what 



156 JOHN MARSHALL 

^ The case of Fairfax's Devisee vs. Hunter's Lessee 

was argued for the former by Charles Lee of Rich- 
mond and Walter Jones of Washington, D.C. 
Robert Goodloe Harper of Baltimore appeared for 
Hunter. On both sides the argument was mainly 
upon the effect on the Fairfax title of the Virginia 
confiscatory laws; of the proceedings or failure to 
proceed under them; and the bearing upon the 
controversy of the two treaties with Great Britain. 
Harper, however, insisted that the court consider 
the statute of Virginia which set forth and confirmed 
the Marshall compromise. 

On March 15, 1818, Story delivered the opinion 
of the majority of the court, consisting of himself and 
Justices Washington, Livingston, Todd, and Duval. 
Johnson, alone, dissented. Story held that, since 
; Virginia had not taken the prescribed steps to acquire 
l^al possession of the land before the Treaty of 
Peace, the State could not do so afterward. ^'The 
patent of the original plaintiff [Hunter] . . issued im- 

has already dropt from the Chief Justice.** (Lcmdon to Gaston, July 8» 
liB05, as quoted by Onmor in Unio. qf Pa. Law Rev. vd. 62, 690.) 

He was, however, disgusted with Marshall. *'I fed mudi chagrin 
that we are put to so much trouble and expense in this business, and 
which I fear is in great degree to be attributed to the Chief Justice's 
ddivery.*' (Same to same, April 19, 1806, as quoted by Connor in tb. 
691.) 

For more than ten years the appeal of the Granville heirs from the 
judgment of the National Court for the District of North Carolina re* 
posed on the scanty docket of the Supreme Court awaiting call for ar- 
gument by counsel. Finally on Fdbruary 4, 1817, on motion of counsel 
for the Granville heirs, the case was stricken from the docket The 
reason for this action undoubtedly was that William Gaston, counsd 
for the Granville heirs, had been dected to Congress, was ambitious 
pditically, was thereafter dected judge of the Supreme Court of North 
Carolina; none of these honors oouU possibly have been achieved had 
he pressed the Granville case. 



INTERNATIONAL LAW 157 

providentljr and passed no title whatever/* To up- 
hold Virginia's grant to Hunter ^^ would be selling 
suits and controversies through the whole country/' ^ 
It was not necessary^ said Stoiy, to consider the 
Treaty of Peace, since "we are well satisfied that 
the treaty of 1794 ' completely protects and confirms 
the title of Denny Fairfax." * 

In his dissenting opinion Justice Johnson ignored 
the "compromise" of 1796, holding that the grant by 
the State to Hunter extinguished the right of Fair- 
fax's devisee.* He concurred with Story and Wash- 
ington, however, in the opinion that, on the face of 
the record, the case came within Section 25 of the 
Judiciary Act; that, therefore, the writ of error had 
properly issued, and that the title must be inquired 
into before considering "how far the . . treaty . • is 
applicable to it." * Accordingly the mandate of the 
Supreme Court was directed to the judges of the Vir- 
ginia Court of Appeals, instructing them "to enter 
judgment for the appellant, Philip Martin [the Fair- 
fax devisee]." Like all writs of the Supreme Court, 
it was, of course, issued in the name of the Chief 
Justice.' 

Hot was the wrath of Roane and the other judges 
of Virginia's highest court when they received this 
order from the National tribunal at Washington. 
At their next sitting they considered whether to 
obey or to defy the mandate. They called in "the 
members of the bar generally," and the question 

^ 7 Cnnch, 625. 

* The Jay Treaty. See vol. n, 119-15, of this work. 

* 7 Cnuich» 627. « lb. 681. 

' lb. 682. * For mandate see 4 Munford* 2-8. 



158 JOHN MARSHALL 

"was solemnly argued'* at Richmond for six con- 
secutive days.^ On December 16, 1815, the decision 
was published. The Virginia judges unanimously de- 
clined to obey the mandate of the Supreme Coxui; 
of the United States. Each judge rendered a separate 
opinion, and all held that so much of Section 25 of 
the National Judiciaiy Act as "extends the appellate 
jurisdiction of the Supreme Court to this court, is 
not in pursuance of the constitution of the United 
States." 2 

But it was not only the Virginia Coxui; of Appeals 
that now spoke; it was the entire Republican parti- 
san machine, intensively organized and intelligently 
run, that brought its power to bear against the high- 
est tribunal of the Nation. B^ond all possible doubt, 
this Republican organization, speaking through the 
supreme judiciary of the State, represented public 
sentiment, generally, throughout the Old Dominion. 
Unless this political significance of the opinions of 
the Virginia judges be held of higher value than 
their legal quality, the account of this historic con- 
troversy deserves no more than a brief paragraph 
stating the legal point decided. 

The central question was well set forth by Judge 
Cabell thus: Even where the construction of a treaty 
is involved in the final decision of a cause by the 
highest court of a State, that decision being against 
the title of the party claiming under the treaty, can 
Congress "confer on the Supreme Court of the 
United States, a power to re-examiney by way of ap- 
peal or vyrit of error ^ the decision of the state Court ; to 

^ March 31, April 1 to April 6, 1814. (4 Munford, 8.) * lb. 58. 



INTERNATIONAL LAW 169 

affirm of reverse that decision; and incase of reversal, 
to command the state Court to enter and execute a judg- 
ment different from that which it had previoudy ren- 
dered?''^ 

Eveiy one of the judges answered in the negative. 
The opinion of Judge Cabell was the ablest, and 
stated most clearly the real issue raised by the Vir- 
ginia court. Neither State nor National Government 
is dependent one upon the other, he said; neither can 
act ** comjndsively'* upon the other. Controversies 
might arise between State and National Grovem- 
ments, '*yet the constitution has provided no um- 
pire, has erected no tribunal by which they shall be 
settled.'* Therefore, the National court could not 
oblige the State court to ^^ enter a judgment not its 
own.*'* The meaning of the National "Constitution, 
laws and treaties, • . must, in cases coming before 
State courts, be decided by the State Judges, ac- 
cording to their oum jvdgmentSy and upon their oum 
responsibility.''^ National tribunals belong to one 
sovereignty; State tribunals to a different sover- 
eignty — neither is *^ superior" to the other; neither 
can command or instruct the other.^ 

Grant that this interpretation of the Constitu- 
tion results in conflicts between State and Nation 
and even deprives the "general government . . of 
the power of executing its laws and treaties "; even 
so, "the defects of our system of government must 
be xiemedied, not by the iudiciary, but by the sover- 
eign power of the people." The Constitution must 
be amended^jy the people, not by judicial interpre- 

» 4 Munford, 7. « 16. S-9. » lb. 11. < 16. 12. 



<. 



160 JOHN MARSHALL 

tation;^ yet Congress, in Section 25 of the Judiciary 
Act, '^attempts, in fact, to make the State Courts 
If^eriof Federal Courts. ^^ The appellate jurisdiction 
conferred on the Supreme Court, and the word 
^^eupreme^^ itself, had reference to inferior National 
courts and not to State courts.* 

Judge Koane's opinion was veiy long and discussed 
extensively every phase of the controversy. He held 
that, in giving National courts power over State 
courts. Section 25 of the Ellsworth Judiciary Act 
violated the National Constitution. If National 
courts could control State tribunals, it would be a 
^^ plain case of the judiciary of one government cor- 
recting and reversing the decisions of that of an- 
other.*' * The Virginia Court of Appeals "is bound, 
to follow its own convictions . . any thing in the 
decisions, or supposed decisions, of any other court, 
to the contrary notwithstanding." Let the court at 
Ti^chester, therefore, be instructed to execute the 
judgment of the State Court of Appeals.^ 

Such was the open, aggressive, and dramatic de- 
fiance of the Supreme Court of the United States 
by the Court of Appeals of Virginia. Roane showed 
his opinion to Monroe, who approved it and sent it 
to Jefferson at Monticello. Jefferson heartily com- 
mended Roane,^ whereat the Virginia judge was 
"very much flattered and gratified." • 

Promptly Philip Martin, through James M. Mar- 
shall, took the case to the Supreme Court by means 

> 4 Munfoid, 15., < Th. 188. * 16. 88. « A. 54. 

• Jefferson to Boane^ Oct 12, 1815, Works: Ford, xi^ 488-90. 

* Boane to Jefferson, Oct. S8, 1815, Branch HisL JPapers^ June. 
1905, 181-82. 



INTERNATIONAL LAW 161 

of another writ of error. It now stood upon theu 
docket of that coxui; as Martin vs. Hunter's Lessee. 
Again Marshall refused to sit in the case. St. George 
Tucker of Virginia, one of the ablest lawyers of the 
South, and Samuel Dexter, the leader of the Massa- 
chusetts bar, appeared for Hunter.^ As Harper had 
done on the first appeal, both Tucker and Dexter 
called attention to the fact that the decision of the 
Virginia Court of Appeals did not rest exclusively 
upon the Treaty of Peace, which alone in this case 
would have authorized an appeal to the Supreme 
Court.* 

Story delivered the court's opinion, which was one 
of the longest and ablest he ever wrote. The Con- 
stitution was not ordained by the States, but ^^em- 
phatically . . by * the people of the United States.' * . . <- 
Its powers are expressed in general terms, leaving to 
the l^islature, from time to time, to adopt its own 
means to efiFectuate legitimate objects, and to mold 
and model the exercise of its powers, as its own 
wisdom and the public interests should require." ^ 
Story then quotes Sections 1 and 2 of Article HI of 
the Constitution,* and continues: Thus is **the voice ♦ 

1 The employment of these expensive lawyers is final proof of 
Hunter's financial resources. 

« 1 Wheaton, 817, 318. » lb. 324. * lb, 82»-27. 

* The sections of the Constitution pertaining to this dispute are 
as fdlows: 

^'Article IQ, Section 1. The judicial Power of the United States, 
sliall be vested in one supreme Court, and in such inferior Courts as the 
Congress may bom time to time ordain and establish. The Judges, 
both of the supreme and inferior Courts, shall hold their Offices during 
good Behaviour, and shall, at stated Times, receive for their Services 
a Compensation, which shall not be diminished during their Continu- 
ance in Office. 

^'Section 2. The judicial Power shall extend to all Cases, in Law 



162 JOHN MABSHALL 

of the whole American people solemnly declared, in 
establishing one great department of that govern- 
ment which was, in many respects, national, and in 
all, supreme/' Congress cannot disregard this Con- 
stitutional mandate. At a length which, but for the 
newness of the question, would be intolerable. Story 
demonstrates that the Constitutional grant of judi- 
ciary powers is "imperative/* ^ 

What, then, is the "nature and extent of the appel- 
late jurisdiction of the United States"? It embraces 
"every case . . not exclusively to be decided by way 
of original jurisdiction/' There is nothing in the 
Constitution to "restrain its exercise over state 
tribunals in the enumerated cases. . . It is the case, 
. . and not the court, that gives the jurisdiction.'* * If 
the appellate power does not extend to State courts 
having concurrent jurisdiction of specified cases, then 
that power does "not extend to all, but to some, 
cases" — whereas the Constitution declares that it 
extends to all other cases than those over which the 
Supreme Court is given original jurisdiction. • 

With great care Story shows the "propriety" of 
this construction.* Then, with repetitiousness after 
the true Marshall pattern, he reasserts that the 

and Equity, arising under this Constitution, the Laws of the United 
States, and Treaties made, or which shall be made, under their Au- 
thority; — to all Cases affecting Ambassadors, other public Ministers 
and Consuls; — to all Cases of admiralty and maritime Jurisdiction; 
— to Controversies to which the United States shall be a Party; — 
to Controversies between two or more States; — between a State and 
Citizens of another State; — between Citizens of different States; -. — 
between Citizens of the same State claiming Lands under Grants of 
different States, and between a State, or the Citizens thereof, and for- 
eign States, Citizens or Subjects." 
^ 1 Wheaton» S28. > lb. 887-88. ' lb. 889. « lb. 841. 



INTEKNATIONAL LAW 168 

Constitution acts on States as well as upon individ- 
uals, and gives many instances where the "sover- 
eignty " of the States are "restrained." State judges 
are not independent "in respect to the powers 
granted to the United States''; ^ and the appellate 
power of the Nation extends to the State courts in 
cases prescribed in Section 25 of the Judiciary Act; 
for the Constitution does not limit this power and 
" we dare not interpose a limitation where the people 
have not been disposed to create one." * 

The case decided on the former record, says Story, 
is not now before the court. "The question now liti- 
gated is not upon the construction of a treaty, but 
upon the constitutionality of a statute of the United 
States, which is clearly within our jurisdiction/' 
However, "from motives of a public natiu^," the 
Supreme Court would "re-examine" the grounds 
of its former decision.' After such reexamina- 
tion, extensive in length and detail, he finds the 
first decision of the Supreme Court to have been 
correct. 

Story thus notices the Marshall adjustment of 
1796: "If it be true (as we are informed)" that the 
compromise had been effected, the court could not 
take "judicial cognizance" of it "unless spread 
upon the record." Aside from the Treaty of Peace, 
the Fairfax title "was, at all events, perfect under 
the treaty of 1794." * In conclusion. Story announces : 
" It is the opinion of the whole court that the judg- 
ment of the Court of Appeals of Virginia, rendered 
on the mandate in this cause, be reversed, and the 

^ 1 Wheaton, S4S-44. * lb. 851. ' lb. S55. « lb. SeO. 



<. 



164 JOHN MABSHALL 

judgment of the District Court, held at Winchester, 
be, and the same is hereby afllrmed/* ^ 

It has been conmionly supposed that Marshall 
practically dictated Story's two opinions in the Fair- 
fax-Hunter controversy, and certain writers have 
stated this to be the fact. As we have seen. Story 
himself, fifteen years afterwards, declared that the 
Chief Justice had "conciured in every word of the 
second opinion'*; yet in a letter to his brother con- 
cerning the eflfect of Story's opinion upon another 
suit in the State court at Winchester, involving the 
same question, Marshall says: "'The case of Hunter 
& Fairfax is very absurdly put on the treaty of 94." * 

1 1 Wheaton» S6». 

* Marshdl to his brother* July 9, 182£, MS. 

Parts of this long letter are of interest: "Although Judge White [of 
the Winchester court] will, of course, conform to the decision of the 
court of appeals against the appdlate jurisdiction of the Supreme 
court, & th^efore deny that the opinion in the case of Fairfax & Hun- 
ter is binding, yet he must admit that the supreme court is the proper 
tribunal for expounding the treaties of the United States, & that its 
decisions on a treaty are binding on the state courts, whether they 
possess the appelate jurisdiction or not. . . The exposition of any state 
law by the courts of that state, are considered in the courts of all 
the other states, and in those of the United States, as a correct exposi- 
tion, not to be reexamined. 

''The only exception to this rule is when the statute of a state is 
supposed to violate the constitution of the United States, in which 
case the courts of the Union claim a controuling & supervising power. 
Thus any construction made by the courts of Virginia oa the statute 
of descents or of distribution, or on any other subject, is admitted as 
conclusive in the federal courts, although those courts might have de- 
cided differently on the statute itself. The principle is that the courts 
of every government are the proper tribunals for construing the legis- 
lative acts of that government. 

''Upon this principle the Supreme court of the United States, in- 
dependent of its appdlate jurisdiction, is the proper tribunal for con- 
struing the laws & treaties of the United States; and the construction 
of that court ought to be received every where as the right donstruo- 
tion. The Supreme court of the United States has settled the con- 



J INTERNATIONAL LAW 166 

Jijustice Johnson dissented in an opinion as inept 
and/ unhappy as his dissent in Fletcher vs. Peck.^ 
He <x>ncurs in the judgment of his brethren, but, in 
doing so, indulges in a stump speech in which 
Nationalism and State Rights are mingled in as- 
tounding fashion. The Supreme Court of the United 
States, he says, ^^ disavows all intention to decide on 
the right to issue compulsory process to the state 
courts." To be sure, the Supreme Court is "supreme 
over persons and cases as far as our judicial powers 
extend," but it cannot assert "any compulsory con- 
trol over the state tribimab." He views "this ques- 
tion as one • . which may affect, in its consequences, 
the permanence of the American Union," since the 
Nation and "one of the greatest states" are in col- 
lision. The "general government must cease to 
exist" if the Virginia doctrine shall prevail, but "so 
' firmly" was he "persuaded that the American people 
can no longer enjoy the blessings of a free govern- 
ment, whenever the state sov^eignties shall be pros- 
trated at the feet of the general government," that 
he " could borrow the language of a celebrated orator, 
and exclaim: *I rejoice that Virginia has resisted/ " * 

•tniction of the treaty of peace to be that lands at that time held by 
British subjects were not escheatable or grantable by a state . . I refer 
particularly to Smith v The State of Maryland ^ Cranch Jackson v 
Clarke S Wheaton & Orr v Hodgson 4 Wheaton. The last case is ex- 
fdicit & wa9 decided unanimously, Judge Johnson assaiting. 

** This being the construction of the highest court of the government 
which is a |>arty to the treaty is to be considered by all the world as its 
true ocmstruction unless Great Britain, the other party, should con- 
trovert it. The court of appeab has not denied this principle. The 
dicta of Judge Boane respecting the treaty were anterior to this con- 
stitutional construction of it." 

^ See voL m, chap, z, of this work. * 1 Wheaton, ^6i^-68• 



166 JOHN MABSHALL 

Nevertheless, Johnson agrees with the judgment 
of his associates and, in doing so, delivers a rfa- 
tionalist opinion, stronger if possible than thajt of 
Story.i » 

The public benefits and the historic importance of 
the decision was the assertion of the suprexhapy 
of the Supreme Court of the Nation over the hijghest 
V court of any State in all cases where the Ns^tional 
Constitution, laws and treaties — "the supreme law 
of the land'* — are involved. The decision of the 
Supreme Court in Martin vs. Hunter's Lessee went 
further than any previous judicial pronouncement 
to establish the relation between National courts 
and State tribimals which now exists and will con- 
tinue as long as the Republic endures. 

When the news of this, the first Constitutional 
opinion eiver delivered by Story, got abroad, he was 
, mercilessly assailed by his fellow Republicans as a 
I*' renegade/' * Congress refused to increase the sala- 
■ries of the members of the Supreme Court,* who found 
it hard to live on the compensation allowed them,* 
and Story seriously considered resigning from the 
bench and taking over the Baltimore practice of 
Mr. Pinkney, who soon was to be appointed Minister 

^ Johnson's opinion was published in the National Irddligencer, 
April 16, 1816, as an answer to Roane's argument. (Smith in ^nmcft 
HiH. Papers, June, 1905, 28.) 

« Story, I, 277. 

* Annala, 14th Cong. 1st Bess. 194, 281-88. 

A bill was reported Mardi 22, 1816, increasing the salaries of all 
government officials. The report of the committee is valuable as show- 
ing the increased cost of living. (lb.) 

^ Nearly three years after the decision of Martin na. Hunter's Lessee, 
Stoiy writes that the Justices of the Supreme Court are ** starving in 
splendid poverty. " (Story to Wheaton, Dec. 9, 1818, Story, i, 818.) 



INTERNATIONAL LAW 167 

to Russia.^ The decbion aroused excitement and in- 
dignation throughout Virginia. Roane's popularity 
increased from the Tide Water to the Valley.* The 
Republican organization made a political issue of 
the judgment of the National tribunal at Washing- 
ton. Judge Roane issued his orders to his political 
lieutenants. The party newspapers, led by the En- 
quirer^ inveighed against the "usurpation** by this 
distant Supreme Court of the United States, a for- 
eign power, an alien judiciary, unsympathetic with 
Virginia, ignorant of the needs of Virginians. 

This conflict between the Supreme Court of the 
United States and the Court of Appeals of Virginia 
cq>ened another phase of that fundamental struggle 
which war was to decide — a fact without knowl- \ 
edge of which this phase of American Constitutional 
history is colorless. 

Not yet, however, was the astute Virginia Repub- 
lican triumvirate ready to imloose the Hghtnings of 
Virginia's wrath. That must be done only when the 
whole South should reach a proper degree of emo- 
tion. This time was not long to be delayed. Within 
three years Marshall's opinion in M'Culloch vs. 
Maryland was to give Roane, Ritchie, and Taylor y, 
their cue to come upon the stage as the spokesmen 
of Virginia and the entire South, as the cham- 
pions, indeed, of Localism everywhere throughout 
America. Important were the parts they played in 
the drama of Marshall's judicial career. 

» Story to White, Feb. 26, 1816, Story, i, 278; and see Story to 
Williams, May 22, 1816, ib. 279. 

* Ambler: Sectionalism in Virginia, 103. 



CHAPTER IV 

FINANCIAL AND MORAL CHAOS 

Like a dropsica] man caUing out for water, water, our deluded citizens art 
calling for more banks. (Jefferson.) 

Merdiants are crumbling to ruin, manufactures perishing, agriculture stag* 
Bating and distress universal. (John Quincy Adams.) 

If we can believe our Democratic editors and public dedaimers it pSank of the 
United States] is a Hydra, a Cerberus, a Gorgo n, a V ulture, a Viper. 

(William Harris Crawford.) 

Where one prudent and honest man applies for [bankruptcy] one hundred 
rogues are facilitated in their depredations. (Hesekiah Niks.) 

Merchants and traders are harassed by twenty different S3^stems of laws, pn^ 
lific in endless frauds, perjuries and evasions. (Harrisem Gray Otis.) 

The months of February and March, 1819, are mem- 
orable in American history, for during those months 
John Marshall delivered three of his greatest opin- 
ions. All of these opinions have had a determinative 
effect upon the political and industrial evolution of 
the people; and one of them ^ has so decisively in- 
fluenced the growth of the Nation that, by many, it 
is considered as only second in importance to the 
Constitution itself. At no period and in no land, 
in so brief a space of time, has any other jurist or 
statesman ever bestowed upon his country three 
documents of equal importance. Like the other fun- 
damental state papers which, in the form of judi- 
cial opinions, Marshall gave out from the Supreme 
Bench, those of 1819 were compelled by grave and 
dangerous conditions. National in extent, 
t It was a melancholy prospect over which Mar- 
shall's broad vision ranged, when from his rustic 

i M'CuDoch tw. Maiylandy see ^^^ du^. vi. 



FINANCIAL AND MORAL CHAOS 169 

bench under his trees at Richmond, during the 
spring and autunm of 1818, he surveyed the situa- 
tion in which the American people found themselves. 
It was there, or in the quiet of the Blue Ridge Moun- 
tains where he spent the summer months, that he 
formed the outlines of those charts which he was soon 
to present to the country for its guidance; and it was 
there that at least one of them was put on paper. 

The interpretation of John Marshall as the con- 
structing architect of American Nationalism is not 
satisfactorily accomplished by a mere statement of 
his Nationalist opinions and of the immediate legal 
questions which they answered. Indeed, such a narra- 
tive, by itself, does not greatly aid to an imderstand- 
ing of Marshall's immense and enduring achieve- 
ments. Not in the narrow technical points involved, 
some of them diminutive and all uninviting in their 
formality; not in the dreary records of the law cases 
decided, is to be foimd the measure of his monu- 
mental service to the Republic or the meaning of 
what he did. The state of things which imperatively 
demanded the exercise of his creative genius and the 
firm pressure of his steadying hand must be under- 
stood in order to grasp the significance of his labors. 

When the Supreme Court met in February, 1819, 
almost the whole country was in grievous turmoil; 
for nearly three years conditions had been growing 
rapidly worse and were now desperate. Poverty, 
bankruptcy, chicanery, crime were widespread and 
increasing. Thrift, prudence, honesty, and order 
had seemingly been driven from the hearts and minds 
of most of the people; while speculation, craft, and 



170 JOHN MARSHALL 

unscrupulous devices were prevalent throughout all 
but one portion of the land. Only New England had 
largely escaped the universal curse that appeared to 
have fallen upon the United States; and even that 
section was not untouched by the economic and 
social plague that had raged and was becoming more 
deadly in every other quarter. 

While it is true that a genuine democratizing evo- 
lution was in progress, this fact does not explain the 
situation that had grown up throughout the coimtry. 
Neither does the circumstance that the development 
of land and resources was going forward in haphaz- 
ard fashion, at the hands of a new population hard 
pressed for money and facilities for work and com- 
munication, reveal the cause of the appalling state 
of affairs. It must frankly be said of the conditions, 
to us now unbelievable, that they were due partly to 
the ignorance, credulity, and greed of the people; 
partly to the spirit of extravagance; partly to the 
criminal avarice of the financially ambitious; partly 
to popular dread of any great centralized moneyed 
institution, however soimd; partly to that pest of all 
democracies, the uninformed and incessant dema- 
gogue whipping up and then pandering to the pas- 
sions of the multitude; partly to that scarcely less 
dangerous creature in a Republic, the fanatical doc- 
trinaire, proclaiming the perfection of government 
by word-logic and insbtrng that human nature shall 
be confined in the strait-jacket of verbal theory. 
From this general welter of moral and economic de- 
bauchery. Localism had once more arisen and was 
eagerly reasserting its domination. 



\ 



FINANCIAL AND MORAL CHAOS 171 

The immediate cause of the country's plight waa <i 
an utter chaos in banking. Seldom has such a finan- 
cial motley ever covered with variegated rags the 
backs of a people. The confusion was incredible; 
but not for a moment did the millions who suffered, 
blame themselves for their tragic predicament. Now 
praising banks as unfailing fountains of money, now 
denouncing banks as the sources of poisoned waters, 
clamoring for whatever promised even momentary 
relief, striking at whatever seemingly denied it, the 
people laid upon anything and anybody but them- 
selves and then* improvidence, the responsibility for 
their distress. 

Hamilton's financial plans ^ had proved to be as 
successful as they were brilliant. The Bank of the 
United States, managed, on the whole, with pru- 
dence, skiU, and honesty,' had fulfiilled the expecta- 
tions of its founders. It had helped to maintain the 
National credit by loans in anticipation of revenue; 
it had served admirably, and without compensation, 
as an agent for collecting, safeguarding, and trans* 
porting the fimds of the Government; and, more 
important than all else, it had kept the currency, 
whether its own notes or those of private banks, on 
a sound specie basis. It had, indeed, *' acted as the 
general guardian of commercial credit'' and, as such, 
had faithfully and wisely performed its duties.' 

But the success of the Bank had not overcome the 

* See vol. n, 60, of this work. 

* Simmer: History cf American Currency, 63. 

* See Memorial of the Bank for a recharter, April 20, 1808 (Am, 
Stale Papers, Finance, n, 801), and second Memorial, Dec. 18, 1810 
(ib. 451-52). Every statement in these petitions was true. See also 
Dewey: Financial History qf ike United States, 100, 101. 



172 JOHN MABSHALL ' 

original antagonism to a great central moneyed in- 
stitution. Following the lead of Jefferson, who had 
insisted that the project was miconstitutional,^ Madi- 
son, in the first Congress, had opposed the bill to 
incorporate the first Bank of the United States. Con- 
gress had no power, he said, to create corporations.' 
After twelve years of able management, and in spite 
of the good it had accomplished, Jefferson still con- 
sidered it, potentially, a monster that might over- 
throw the Republic. **This institution," he wrote in 
the third year of his Presidency, " is one of the most 
deadly hostility existing, against the principles & 
form of our Constitution. . . An institution like this, 
penetrating by it's branches every part of the Union, 
acting by command & in phalanx, may, in a critical 
moment, upset the government. . . What an obstruc- 
tion could not this bank of the U. S., with all it's 
branch banks, be in time of war?" • 

The fact that most of the stock of the Bank had 
been bought up by Englishmen added to the un- 
popularity of the institution.^ Another source of hos- 
^tility was the jealousy of State banks, much of the 
complaint about "unconstitutionality" and "for- 
eign ownership" coming from the agents and friends 
of these local concerns. The State banks wished for 
^themselves the profits made by the National Bank 
land its branches, and they chafed under the wise 

* See voL n, 70-71, of this work. 

' Annals, lat Cong. 2d. Sess. 1945. By far the strongest objection 
to a National bank, however, was that it was a monopoly inconsistent 
with free institutions. 

' Jefferson to Gallatin, Dec. IS, 1808, Works: Ford: x, 57. 

^ ''Fully two thirds of the Bank stock . • were owned in Eng- 
land." (Adams: CTwS. y» 328.) 



FINANCIAL AND MORAL CHAOS 178 

r^ulation of their note issues, which the existence i 
of the National system compelled. 

For several years these State banks had been 
growing in number and activity.^ When, in 1808, the 
directors of the Bank of the United States asked for 
a renewal of its charter, which would expire in 1811, 
and when the same request was made of Congress in 
1809, opposition poured into the Capital from every 
section of the country. The great Bank was a British 
institution, it was said; its profits were too great; 
it was a creature of Federalism, brought forth in 
violation of the Constitution. Its directors, officers, 
and American stockholders were Federalists; and 
this fact was the next most powerful motive for the 
overthrow of the first Bank of the United States.* 

Petitions to Congress denounced it and demanded 
its extinction. One from Pittsburgh declared "that 
your memorialists are *the People of the United 
States,'*' and asserted that the Bank "held in bond- 
age thousands of our citizens," kept the Government 
"in dittess,*' and subsidized the press, thus "throng- 
ing " the Capital with lobbyists who in general were 
the "head-waters of corruption.'' • The Legislatures 
of many States "instructed" their Senators and 
"earnestly requested" their Representatives in 
Congress to oppose a new charter for the expiring 
National institution. Such resolutions came from 
Pennsylvania, from Virginia, from Massachusetts.^ 

^ Dewey, 127; and Pitkin: Statistical View of the Commerce of the 
United States, 180-82. 
« Adams: U^. v, 828-29. 
' Anndsy 11th Cong. Sd Sess. 118-91. 
« Ih. 158, 201, 808; and see Pitkb, 421. 



174 JOHN MARSHALL 

The State banks were the principal contrivers of all 
this agitation.^ For instance, the Bank of Virginia, 
organized in 1804, had acquired great power and, 
but for the brandi of the National concern at Ridi- 
mond, would have had almost the banking monop- 
oly of that State. Especially did the Virginia Bank 
desire to become the depository of National funds * 
— a thing that could not be accomplished so long as 
the Bank of the United States was in existence.' Dr. 
John Brockenbrough, the relative, friend, and politi* 
cal associate of Spencer Boane and Thomas Ritchie, 
was the president of this State institution, whidi 
was a most important part of the Republican ma- 
chine in Virginia. Considering the absolute control 
held by this political organization over the Legisla- 
ture, it seems probable that the State bank secured 
the resolution condenmatory of the Bank of the 
United States. 

Certainly the General Assembly would not have 
taken any action not approved by Brockenbrough, 
Roane, and Ritchie. Ritchie's Enquirer boasted that 
it *' was the first to denounce the renewal of the bank 
charter."* In the Senate, William H. Crawford 
boldly charged that the instructions of the State L^- 
islatures were "induced by motives of avarice**;* 
and Senator Giles was plainly embarrassed in his 
attempt to deny the indictment.* 

^ Adams : U.8. v» 827-^. ** They induced one State legislature after 
another to instruct their senators on the subject.'* Pitkin, 422. 
« Ambler: Ritchie, 2^-27, 52. • 76. 67. < 

* Branch HisL Papers, June, 1903, 179. 

* Annale, 11th Cong. Sd Sess. 145. 

* "It is true, that a branch of the Bank of the United States • • h 
established at Norfdk; and that a branch (rf the Bank of Virgima is 



FINANCIAL AND MORAL CHAOS 17i 

Nearly all the newspapers were controlled by the 
State banks;* they, of course, denounced the Na- 
tional Bank in the familiar terms of democratic con- 
troversy and assailed the character of every public 
man who spoke in behalf of so vile and dangerous an 
institution.^ It was also an ideal object of assault for 
local politicians who bombarded the Bank with their 
usual vituperation. All this moved Senator Craw- 
ford, in his great speech for the rechartering of the 
Bank, to a scathing arraignment of such methods.' 

In spite of conclusive arguments in favor of the 
Bank of the United States on the merits of the ques- 
tion, the bill to recharter that institution was de* 

alao established there. But these circumstances furnish no possible 
motive of avarice to the Virginia Legislature. . . They have acted • • 
from the purest and most honorable motives." {Atmala, 11th Cong. 
8d Sess. 200.) 

^ Pitkin, 421. 

* The ''newspapers teem with the most virulent abuse." (James 
Flint's Letters horn America, in Early Western TraveU: Thwaites, ix» 
S7.) Even twenty years later Captain Marryat records: "The press 
in the United States is licentious to the highest possible degree, and 
defies controL . . Every man in America reads his newspaper, and 
hardly any thing else." (Marryat : Diaiy in Americay 2d Series, 50-^9.) 

' ''The Democratic presses . . have . . teemed with the most scur- 
rilous abuse against every member of Congress who has dared to utter 
a syllable in fav<Hr of the renewal of the bank charter." Any member 
supporting the bank "is instantly charged with being bribed, • . with 
being corrupt, with having trampled upon the rights and liberties 
of the people, . . with being guilty of perjury." 

According to "the rantings of our Democratic editors . • and the 
denunciations of our public declaimers," the bank " exists under the 
form of every foul and hateful beast and bird, and creeping thing. It 
is an Hydra; it is a Cerberui; it is a Oorgon; it is a VvUure; it is a 
Viper, . . 

"3iall we tamdy act under the lash of this tyranny of the press? • . 
I most sdiemnly protest . . To tyranny, under whatever form it may 
be exercised, I declare open and intenninable war . . whether the ty- 
rant is an irresponsible editor or a despotic Monarch." (iinnob, 11th 
Cong, dd Sesi. 145.) 



> 



176 JOHN MARSHALL 

feated in the House by a single vote,^ and in the 
Senate by the casting vote of the Vice-President, the 
aged George Clinton.* Thus, on the very threshold 
of the War of 1812, the Government was deprived of 
this all but indispensable fiscal agent; immense quan- 
tities of specie, representing foreign bank holdings, 
were withdrawn from the country; and the State 
banks were given a free hand which they soon used 
with unrestrained license. 

These local institutions, which, from the moment 
the f ailiu^ of the rechartering of the National Bank 
seemed probable, had rapidly increased in number, 
now began to spring up everywhere.' Prom the first 
these concerns had issued bills for the loan of which 
they charged interest. Thus banking was made 
doubly profitable. Even those banks, whose note 
issues were properly safeguarded, achieved immense 
profits. Banking became a mania. 

"'The Banking Infatuation pervades all America,'^ 
wrote John Adams in 1810. "Our whole system of 
Banks is a violation of every honest Principle of 
Banks. . . A Bank that issues Paper at Interest is a 
Pickpocket or a Robber. But the Delusion will have 
its Coiwse. You may as well reason with a Hurri- 
cane. An Aristocracy is growing out of them, that 
will be as fatal as The Feudal Barons, if unchecked 
in Time. • • Think of the Number, the Offices, Sta- 
tions, Wealth, Piety and Reputations of the Persons 
in all the States, who have made Fortimes by these 
Banks, and then you will see how deeply rooted the 
evil is. The Nmnber of Debtors who hope to pay 

^ Annal$, 11th Cong. 8d Sess. 826. > lb. 847. ' Pitkin» 480. 



FINANCIAL AND MORAL CHAOS 177 

their debts by this Paper united with the Creditors 
who build Pallaces in our Cities, and Castles for 
Country Seats, by issuing this Paper form too im- 
pr^nable a Phalanx to be attacked by any Thing 
less disciplined than Roman Legions/' ^ 

Such was the condition even before the expiration 
of the charter of the first Bank. But, when the re- 
straining and regulating influence of that conserva- 
tive and ably managed institution was removed alto- 
gether, local banking began a course that ended in 
a mad carnival of roguery, to the ruin of legitimate 
business and the impoverishment and bankruptcy 
of hundreds of thousands of the general public. 

The avarice of the State banks was immediately 
inflamed by the war necessities of the National Gov- 
ernment. Desperate for money, the Treasury ex- 
changed six per cent United States bonds for the 
notes of State banks.^ The Government thus lost 
five million dollars from worthless bank bills.' These 
local institutions now became the sole depositories 
of the Government funds which the National Bank 
had formerly held.* Sources of gain of this kind were 
only extra inducements to those who, by wit alone, 
would gather quick wealth to set up more local banks. 
But other advantages were quite enough to appeal 
to the greedy, the dishonest, and the adventurous. 

Liberty to poiur out bills without effective restric- 
tion as to the amount or security; to loan such 

1 Adams to Rush* Dec. 27, 1810, Old Family Letters, 272. 

* Sumner: Andrew Jackean, 229. * Dewey, 145. 

^ Twoity-one State banks were onployed as Government deposi- 
tories after tlie destruction of the first Bank of the United States, 
(ft. 128.) . 



178 JOHN MARSHALL 

"rags** to any who could be induced to borrow; to 
collect these debts by foreclosure of mortgages or 
threats of imprisonment of the debtors — these were 
some of the seeds from which grew the noxious 
financial weeds that began to suck the prosperity 
of the country. When the first Bank of the United 
States was organized there were only three State 
banks in the country. By 1800, there were twenty- 
eight; by 1811, they had more than trebled,^ and 
most of the eighty-eight State institutions in exist- 
ence when the first National Bank was destroyed 
had been organized after it seemed probable that 
it would not be granted a recharter. 

So rapidly did they increase and so great were 
their gains that, within little more than a year from 
the demise of the first Bank of the United States, 
John Adams records: ^^The Profits of oiu* Banks to 
the advantage of the few, at the loss of the many, are 
such an enormous fraud and oppression as no bther 
Nation ever invented or endured. Who can compute 
the amoimt of the sums taken out of the Pocketts of 
the Simple and hoarded in the Purses of the cunning 
in the course of every year? . . If Rumour speaks the 
Truth Boston has and will emulate Philadelphia in 
her Proportion of Bankruptcies." ^ 

Yet Boston and Philadelphia banks were the 
soimdest and most carefully conducted of any in the 
whole land. If Adams spoke extravagantly of the 
methods and results of the best managed financial 
institutions of the country, he did not exaggerate 

* Dewey, 1£7. 

* Adams to Bush, July S, 1812, Old Family Letters, 299. 



FINANCIAL AND MORAL CHAOS 179 

conditions elsewhere. From Connecticut to the 
Mississippi River, from Lake Erie to New Orleans, 
the craze for irresponsible banking spread like a con- 
tagious fever. The people were as much affected 
by the disease as were the speculators. The more 
" money " they saw, the more " money "' they wanted, i 
Bank notes fell in value; specie payments were sus- 
pended; rates of exchange were in utter confusion 
and constantly changing. From day to day no man 
knew, with certainty, what the "currency in his 
pocket was worth. At Vincennes, IndiaJlC in 1812, 
William Faux records: "I passed away my 20 dollar 
note of the rotten bank of Harmony, Pennsylvania, 
for five dollars only I*' * 

The continuance of the war, of course, made this 
financial situation even worse for the Government 
than for the people. It could not negotiate its loans; 
the public dues were collected with diflBculty, loss,i 
and delay; the Treasury was well-nigh bankrupt. 
"The Department of State was so bare of money as 
to be unable to pay even its stationery bill."* In 
1814, when on the verge of financial collapse, the 
Administration determined that another Bank of^ 
the United States was absolutely necessary to the' 
conduct of the war.* Scheme after scheme was 
proposed, wrangled over, and defeated. 

One plan for a bank* was beaten "after a day of 
the most tumultuous proceedings I ever saw,'* testi- 

1 William Faux's Journal, E. W. T.i Thwaites, xi, 207. 

* Speech of Hanson in tlie House, Nov. 28, 1814, Annals, 13th Cong. 
ddSess. 656. 

* Catterall: Second Bank qf the United States, 13-17. 
« Calhoun's bilL 



180 JOHN MARSHALL 

fies Webster.^ Another bill passed,* but was vetoed 
by President Madison because it could not aid in 
the rehabilitation of the public credit, nor "provide 
a circulating medium during the war, nor • . furnish 
loans, or anticipate public revenue/* • When the war 
was over, Madison timidly suggested to Congress the 
advisability of establishing a National bank " that 
the benefits of a imif orm national currency should be 
restored."* Thus, on April 10, 1816, two years after 
Congress took up the subject, a law finally was en- 
acted and approved providing for the chartering 
and government of the second Bank of the United 
States.* 

Within four years, then, of the refusal of Congress 
to recharter the sound and ably managed first Bank 
of the United States, it was forced to authorize 
another National institution, endowed with practi- 
cally the same powers possessed by the Bank which 
Congress itself had so recently destroyed.* But the 
second establishment would have at least one ad- 
vantage over the first in the eyes of the predom- 
inant political party — a majority of the officers 
and directors of the Bank would be Republicans.^ 

* Webster to his brother, Nov. 29, 1814, Van Tyne, 55. 
« Webster's biU. 

* Annals, ISth Cong, dd Sess. 189-91; Richardson, i, 555-57. 

^ Richardson, i, 565-66. Four years afterwards President Monroe 
told his Secretary of State, John Quincy Adams, that Jefferson, Madi- 
son, and himsdf considered ail Constitutional objections to the Bank 
as having been ''settled by twenty years of practice and acquiescence 
under the first bank.'' {Memoirs, J. Q. A.: Adams, iv, 499, Jan. 8» 
1820.) 

' Annals, 14th Cong. 1st Sess. 280-81. 

* Annals, 1st Cong. 2d and Sd Sess. 2875-82; and 14th Cong. Ist 
Sess. 1812-25; also Dew^, 150-51. 

' CatteraU, 22. 



FINANCIAL AND MORAL CHAOS 181 

During their four years of ^^ financial liberty" the 
number of State banks had multiplied* Those that 
could be enumerated in 1816 were 246.^ In addition 
to these, scores of others, most of them ""pure swin- 
dles,'** were pouring out their paper.* Even if they 
had been sound, not half of them were needed.^ 
Nearly all of them extended their wild methods. 
''The Banks have been going on, as tho' the day 
of reckoning would never come,** wrote Ruf us King 
of conditions in the spring of 1816.^ 

The people themselves encoiuraged these practices. 
The end of the war releaised an immense quantity of 
English goods which flooded the American market. 
The people, believing that devastated Europe would 
absorb all American products, and beholding a vis- 
ion of radiant prosperity, were eager to buy. A pas- 
sion for extravagance swept over America; • the 
country was drained of specie by payments for 
exports.^ Then came a frenzy of speculation. "The 
people were wild; . . reason seemed turned topsy 
turvey.** * 

The multitude of local banks intensified both these 
manias by every device that guile and avarice could 
suggest. Every one wanted to get rich at the expense 
of some one else by a mysterious process, the nature of 

^ Dewey, 144. ' Sumner: Hist. Am. Currency, 70. 

* In November, 1818, Niles estimated that there were about four 
hundred banks in the country with eight thousand "managers and 
derks/' costing $2,000,000, annually. (Niles, xv, 162.) 

^ ''The present multitude of them . . is no more fitted to the con- 
dition of society, than a long-tailed coat becomes a sailor on ship- 
board." (/6. XI, 130.) 

* King to his son. May 1, 1816, King, vi, 22. 

* King to Gore, May 14, 1816, lb. 28-25. 
» Niles, XIV, 109. , » lb. xvi, 257. 



182 JOHN MARSHALL 

which was not generally understood beyond the fact 
that it involved some sort of trickery. Did any man's 
wife and family want expensive clothing — the local 
bank would loan him bills issued by itself, but only 
on good security. Did any man wish to start some un- 
familiar and alluring enterprise by which to make a 
f ortime speedily — if he had a farm to mortgage, the 
funds were his. Was a big new house desired? The 
money was at hand — nothing was required to get it 
but the pledge of property worth many times the 
amoimt with which the bank " accommodated *' him. ^ 
Indeed, the local banks lu^ged such " investments, " 
invited people with property to borrow, laid traps to 
ensnare them. " What,'* asked Hezekiah Niles, "is 
to be the end of such a business? — Mammoth for- 
tunes for the tmscy wretched poverty for the fool- 
ish. . • Lands, lots, houses — stock, farming utensils 
and household furniture, under custody of the sheriff 
— SPECULATION IN A COACH, HONESTY IN THE 

JAIL." » 

Many banks sent agents among the people to 
hawk their bills. These were perfectly good, the har- 
pies would assure their victims, but they could now 
be had at a heavy discoimt; to buy them was to make 
a large profit. So the farmer, the merchant, even the 
laborer who had acquired a dwelling of his own, were 
induced to mortgage their property or sell it out- 
right in exchange for bank paper that often proved 
^to be worthless.* 

Frequently these local banks ensnared prosperous 
farmers by the use of " cappers.'* Niles prints con- 

' » Niles, XVI, «57. « lb. xiv, 110. • lb. 105-96. 



FINANCIAL AND MORAL CHAOS 188 

spicuously as "A True Story*'* the account of a 
certain farmer who owned two thousand acres, well 
improved and with a commodious residence and 
substantial farm buildings upon it. Through his land 
ran a stream affording good water power. He was 
out of debt, prosperous, and contented. One day he 
went to a town not many miles from his plantation. 
There four pleasant-mannered, well-dressed men 
made his acquaintance and asked him to dinner, 
where a few directors of the local bank were present. 
The conversation was brought aroimd to the profits 
to be made in the milling business. The farmer was 
induced to borrow a large sum from the local bank 
and build a mill, mortgaging his farm to secure 
the loan. The mill was built, but seldom used be- 
cause there was no work for it to do; and, in the 
end, the two thousand acres, dwelling, buildings, 
mill, and all, became the property of the bank di- 
rectors.* 

This incident is illustrative of numerous similar 
cases throughout the country, especially in the 
West and South. Niles thus describes banking 
methods in general: "At first they throw out money 
profusely, to all that they believe are vUimately 
able to return it; nay, they wind round some like ser- 
pents to tempt them to borrow — . . they then affect 
to draw in their notes, . . money becomes scarce, 
and notes of hand are shaved by them to meet bank 
engagements; it gets worse — the consummation 

^ ''Nfles' Weekly Register is . . an excellent repository of facts and 
documents." (Jefferson to Crawford, Feb. 11, 1815* Works: Ford» xi, 
453.) 

> Niles, xiv, 426He8. 



184 JOHN MARSHALL 

originaUy designed draws nigh, and farm after farm, 
lot after lot, house after house, are sacrificed." ^ 

So terrifying became the evil that the Legislature 
of New York, although one of the worst oflfenders in 
the granting of bank charters, was driven to appoint 
a committee of investigation. It reported nothing 
more than every honest observer had noted. Money 
could not be transmitted from place to place, the 
committee said, because local banks had ^'engrossed 
the whole circulation in their neighborhood," while 
their notes abroad had depreciated. The operations 
of the bankers "immediately within their vicinity" 
were ruinous: "Designing, imprincipled speculator[s] 
. . impose on the credulity of the honest, industrious, 
unsuspecting . . by their specious flattery and mis- 
representation, obtaining from them borrowed notes 
and endorsements, imtil the ruin is consummated, 
and their farms are sold by the sheriff." ^ 

Some banks committed astonishing frauds, "such 
as placing a partial fund in a distant bank to redeem 
their paper " and then " issuing an emission of notes 
signed with ink of a different shade, at the same time 
giving secret orders to said bank not to pay the notes 
[ thus signed." Bank paper, called ** facility notesy " 
was issued, but "payable in neither money, country 
produce, or any thing else that has body or shape." 
Bank directors even terrorized merchants who did 
not submit to their practices. Li one typical case all 
persons were denied discoimts who traded at a cer- 

* Niles, XIV, a-8. 

' ''Report of the Committee on the Currency of this [New York] 
State/' Feb. M, 1818, ib. 39-42; also partially reproduced in Ameru 
can Hittory told by Coniemporaries: Hart, m» 441-45. 



FINANCIAL AND MORAL CHAOS 186 

tain store, the owner of which had asked for bank 
bills that would be accepted in New York City, where 
they had to be remitted — this, too, when the of- 
fending merchant kept his account at the bank. 

The committee describes, as illustrative of bank- 
ing chicanery, the instance of "an aged farmer," 
owner of a valuable farm, who, "wishing to raise the 
sum of one thousand dollars, to assist his children, 
was told by a director, he could get it out of the 
bank . • and that he would endorse his note for 
him/' Thus the loan was made; but, when the note 
expired, the director refused to obtain a renewal ex- 
cept upon the payment of one hundred dollars in 
addition to the discount. At the next renewal the 
same condition was exacted and also "a judgment 
• • in favor of said director, and the result was, 
his farm was soon after sold without his knowledge 
by the sheriff, and purchased by the said director 
for less than the judgment/' ^ 

Before the second Bank of the United States 
opened its doors for business, the local banks began 
to gather the first fruits of their labors. By the end of 
1816 suits upon promissory notes, bonds, and mort-^ 
gages, given by borrowers, were begun. Three fourths ^ 
of all judgments rendered in the spring of 1818 by the 
Supreme Court of the State of New York alone were 
"in favor of banks, against real property."* Suits 
and judgments of this kind grew ever more frequent. 

In such fashion was the country hastened toward 
the period of bankruptcy. Yet the people in general 

- ^ '' Report of O)iimuttee0Q the CuReiicy/'NewY<Hrk,«upro» 184. 
* Niles, xnr, 108. 



186 JOHN MARSHALL ' 

still continued to demand more " money/' The worse 
the curse, the greater the floods of it called for by the 
body of the public. **Ij\ke a dropsical man calling 
out for water, water, our deluded citizens are clamor- 
ing for more banks. . . We are now taught to believe 
that legerdemain tricks upon paper can produce as 
solid wealth as hard labor in the earth," wrote Jef- 
ferson when the financial madness was becoming too 
apparent to all thoughtful men.^ 

Practically no restrictions were placed upon these 
financial freebooters,* while such flimsy regulations 
as their charters provided were disregarded at will.' 
There was practically no publicity as to the man- 
agement and condition of even the best of these 
banks; ^ most of them denied the right of any author- 
ity to inquire into their affairs and scorned to f umi^ 
information as to their assets or methods.* For years 
the Legislatures of many States were controlled by 
these institutions; bank charters were secured by the 
worst methods of legislative manipulation; lobby- 
ists thronged the State Capitols when the General 
Assemblies were in session; few, if any, lawmaking 
bodies of the States were without officers, directors, 
or agents of local banks among their membership.^ 

^ Jefferson to Yancey, Jan. 6» 1816, Works: Ford, xj, 494. 

* Dewey, 144; and Sumner: Hist. Am. Currency » 75. 

' Niles proposed a new bank to be called "Thb Ragbank of thx 
Univebsid," main office at ** Lcfttery-viUey'* and branches at **Hook8' 
town:' **Ov>l Creek;' **BoUmy Bay:' and ** Tvnsters-burg:' Directors 
were to be empowered also '* to put offices on wheeb, on ship-board, or 
in balloons"; stock to be "one thousand million of old shirts." (Niles, 
xnr, 2«7.) 

« Dewey, 144. » lb. 15S-54. 

« Flint's Letters, E. W. T.i Thwaites, ix, 186; and see '' Report <rf 
the Committee on the Currency/' New York, euprOf 184. 



X 



FINANCIAL AND MORAL CHAOS 187 

Thus bank charters were granted by wholesale and 
they were often little better than permits to plun- 
der the public. During the session of the Virginia 
Legislature of 1816-17, twenty-two applications for 
bank charters were made.^ At nearly the same time 
twenty-one banks were chartered in the newly ad- 
mitted and thinly peopled State of Ohio.^ The fol- 
lowing year forty-three new banks were authorized 
in Kentucky.' In December, 1818, James Flint 
found in Kentucky, Ohio, and Tennessee a "vast 
host of fabricators, and venders of base money."* 
All sorts of " companies " went into the banking busi- 
ness. Bridge companies, turnpike companies, manu- 
facturing companies, mercantile companies, were au- 
thorized to issue their bills, and this flood of paper 
became the " money '* of the people; even towns and 
villages emitted " ciurency '* in the form of municipal 
notes. The City of Richmond, Virginia, in 1815, is- 
sued "small paper bills for change, to the amoimt of 
$29,948.'"* Often bills were put in circulation of 
denominations as low as six and one fourth cents.^ 

■ 

1 Tyler: Tyler, i, 80«; Nfles, xi, 180. 
> Niles, XI, 128. 

* Ih. IV, 109; CoUins : HiHorical Sketches cf Kentucky, 88. 

These were in addition to the branches of the Bank of Kentucky and 
of the Bank of the United States. Including them, the number of 
chartered banks in that State was fifty-eight by the close of 1818. 
Of the towns where new banks were established during that year, 
Burksvillehad 106 inhabitants; Barboursville, 55; Hopkinsville, 131; 
Greenville, 75; thirteen others had fewer than 500 inhabitants. The 
^capital" of the banks in such places was never less than $100,000» 
but that at Glasgow, with 244 inhabitants, had a capital of $200,000» 
and several other villages were similarly favored. For full list see 
Niles, XIV, 109. 

« Flint's Letters, E. W. T.: Thwaites, ix, 188. » Niles, xvn, 85. 

• John Woods's Two Yean' Residence* E. W. T. : Thwaites, x, 280. 



188 JOHN MABSHALL 

Rapidly the property of the people became encum- 
bered to secure their indebtedness to the banks« 

A careful and accurate Scotch traveler thus de- 
scribes their methods: ^'By lending, and otherwise 
emitting their engravings, they have contrived to 
mortgage and buy much of the property of their 
neighbours, and to appropriate to themselves the 
labour of less moneyed citizens. • • Bankers gave in 
exchange for their paper, that of dher banksy equally 
good vnih their own. . . The holder of the paper may 
comply in the barter, or keep the notes • • ; but he 
finds it too late to be delivered from the snare. The 
people committed the lapsus, when they accepted 
of the gew-gaws dean from the press. • . The de- 
luded multitude have been basely duped." ^ Yet, 
says flint, ^' every one is afraid of bursting the 
bubble." * 

As settlers penetrated the Ohio and Indiana for- 
ests and spread over the Illinois prairies, the banks 
went with them and "levied their contributions on 
the first stroke of the axe." * Kentucky was com- 
paratively well settled and furnished many emigrants 
to the newer regions north of the Ohio River. Rough 
log cabins were the abodes of neariy all of the people^ 

» Flint's Letters, E. W. T.: Thwaites, ix. 18S-84. 

« lb. 186. » Niles, xiv, 16«. 

^ Woods's Two Years' Residence, E. W. T.i Thwwtes, x, «74-7S: 
and Flint's Letters, t6. EC, 69. 

Li southwestern Indiana, in 1818, Faux '^saw notliing . • but misera- 
ble log holes, and a mean ville of eight or ten huts or cabins, sadly neg- 
lected farms, and indolent, dirty, sickly, wild-looking inhabitants." 
(Faux's Journal, Nov. 1, 1818, ib, xi, 218-14.) He describes Kentucky 
houses as "miserable holes, having one room only," where "all cook, 
eat, sleep, breed* and die» males and females, all together." (76. 185, 
and see 201^.) 



FINANCIAL AND MORAL CHAOS 189 

who, for the most part, lived roughly,^ drank heavily,* 
were poorly educated.* They were, however, hospi- 
table, generous, and brave; but most of them pre- 
ferred to speculate rather than to work.^ Illness was 
general, soimd health rare.^ '^I hate the prairies. 
. . I would not have any of them of a gift, if I must 
be compelled to live on them," avowed an English 
emigrant.^ 

In short, the settlers reproduced most of the fea- 
tures of the same movement in the preceding gen- 
eration.^ There was the same squalor, suspicion, 

^ For shockmg and almost unbelievable conditions of living among 
the settlers see Fauz's Journal, E. W. T. : Thwaites, xi, 2^, 281, 252- 
58,26S-69. 

' ''We landed for some whisky; for our men would do nothing 
without" (Woods's Two Years' Residence, t6. x. 245, 817.) "Ex- 
cessive drinking seems the all-pervading, easily-besetting sin." (Faux's 
Journal, Nov. 8, 1818, i6. xi, 218.) This continued for many years and 
was as marked in the East as in the West. (See Biarryat, 2d Series, 
87-41.) 

There was, however, a large and ever-increasing number who 
hearkened to those wonderful men, the circuit-riding preachers, who 
did so much to build up monX and religious America. Most people 
belonged to some church, and at the camp meetings and revivals, 
multitudes received conviction. 

The student should carefully read the AtUobiography cf Peter CarU 
urightf edited by W. P. Striddand. This book is an invaluable his- 
torical source and is highly interesting. See also Schermerhom and 
Mills: A Correct View cf that part of the United States which lies west 
of the Allegany Mountains, with regard to Religion and Morals. Great 
Revival in the West, by Catharine C. Cleveland, is a careful and trust- 
worthy account of religious conditions before the War of 1812. It 
has a complete bibliography. 

> Flint's Letters, E. W. T.i Thwaites, 158; also Schermerhom and 
Mflb, 17-18. 

* "Nature is the agriculturist here [near Princeton, Ind.]; specula- 
tion instead of cultivation, is the order of the day amongst men." 
(Thomas Hulme's Journal, E. W. J.: Thwaites, x, 62; see Faux's 
Journal, ib. XL, 227.) 

* Faux's Journal, tb. 216, 286, 242-48. * lb. 214. 
"* See voL i, chap, vn, of this work. 



190 JOHN MARSHALL 

credulity, and the same combativeness,^ the same 
assertion of superiority over every other people on 
earth,* the same impatience of control, particularly 
from a source so remote as the National Govern- 
ment.^ "The people speak and seem as if they were 
without a government, and name it only as a bug- 
bear," wrote WiUiam Faux.* 

Moreover, the inhabitants of one section knew lit- 

1 Flint's Letters, E. W. T.: Thwaites, ix, 87; Woods's Two Years 
Residence, ib. x, ^t56. '*1 saw a man this day . . his nose bitten off cloae 
down to its root, in a fight with a nose-loving neighbour." (Fauz's 
Journal, ib. xi, 222; and see Strickland, 24-25.) 

' The reports of American conditions by British travelers, although 
from unsympathetic pens and much eioggerated, were substantially 
true. Thus Europe, and especially the United Kingdom, conceived for 
Americans that profound contempt which was to endure for generations. 

*'Such is the land of Jonathan," declared the Edinburgh Review in an 
analysis in 1820 (xxxm, 78-80) of a book entitled Statistical Annals qf 
the United States, by Adam Seybert. ''He must not . . allow himself to 
be dazzled by that galaxy of epithets by which his orators and news- 
paper scribblers endeavour to persuade their supporters that they are 
the greatest, the most refined, the most enlightened, and the most 
moral people upon earth. . . They have hitherto given no indications 
of genius, and made no approaches to the heroic, either in their moral- 
ity or character. . . 

"During the thirty or forty years of their independence, they have 
done absolutely nothing for the Sciences, for the Arts, for Literature, 
or even for statesman-like studies of Politics or Political Economy. . . 
In the four quarters of the globe, who reads an American book? or 
goes to an American play? or looks at an American picture or statue? 
What does the world yet owe to American physicians or surgeons? 
What new substances have their chemists discovered? or what old 
ones have they analyzed? What new constellations have been discov- 
ered by the telescopes of Americans? — what have they done in the 
mathematics? . . under which of the old tyrannical governments of 
Europe is every sixth man a Slave, whom his fellow-creatures may buy 
and sell and torture?" 

' Nevertheless, these very settlers had qualities of sound, clean 
citizenship; and beneath their roughness and crudity were noble as- 
pirations. For a sympathetic and scholarly treatment of this phase of 
the subject see Pease: Frontier State, i, 69. 

« Faux's Journal, E. W. T.i Thwaites, xi, 246. 



FINANCIAL AND MORAL CHAOS 191 

tie or nothing of what those in another were doing. 
" We are as ignorant of the temper prevailing in the 
Eastern States as the people of New Holland can 
be/' testifies John Randolph in 1812.^ Even a genera- 
tion after Randolph made this statement, Frederick 
Marry at records that "the United States . . compre- 
hend an immense extent of territory, with a popula- 
tion running from a state of refinement down to one 
of positive barbarism. • . The inhabitants of the cities 

• . know as little of what is passing in Arkansas and 
Alabama as a cockney does of the manners and cus- 
toms of . . the Isle of Man," ^ Communities were still 
almost as segregated as were those of a half-century 
earlier.* Marryat observes, a few years later, that 
" to write upon America as a nation would be absurd, 
for nation . . it is not." ^ Again, he notes in his 
journal that " the mass of the citizens of the United 
States have . • a very great dislike to all law except 

• . the decision of the majority.'* * 

These qualities furnished rich soil for cultivation 
by demagogues, and small was the husbandry re- 
quired to produce a sturdy and bellicose sentiment 
of Localism. Although the biUs of the Bank of the 
United States were sought for,* the hostility to that 
National institution was increased rather than di- 
minished by the superiority of its notes over those 
of the local money mills. No town was too small 
for a bank. The fact that specie payments were 
not exacted "indicated every village in the United 

^ Randolph to Quincy* Aug. 16, 1812» Quincy: Quiney, 270. 

* Mairyat, 2d Series, 1. ' See vol. I, diap. vn, of this work. 
^ Marryat, 1st Series, 15. * Marryat, 2d Series, 176. 

• Woods's Two Years' Besideiioe» E. W. J.: Thwaites, x, 825. 



« 



192 JOHN MARSHALL 

States, where there was a 'church, a tavern and a 
blacksmith's shop/ as a suitable site for a banky and 
justified any persons in establishing one who could 
raise enough to pay the paper maker and engraver.^' ^ 
Not only did these chartered manufactories of 
currency multiply, but private banks sprang up and 
did business without any restraint whatever. Niles 
was entirely within the truth when he declared that 
nothing more was necessary to start a banking busi- 
ness than plates, presses, and paper.* Often the notes 
of the banks, private or incorporated, circulated only 
in the region where they were issued.' In 1818 the 
currency" of the local banks of Cincinnati was 
mere waste paper . . out of the city." * The people 
had to take this local "money" or go without any 
medium of exchange. When the notes of distant 
banks were to be had, the people did not know the 
value of them. "Notes current in one part, are 
either refused, or taken at a large discount, in an^ 
other," wrote Flint in 1818.* 
In the cities firms dealing with bank bills printed 

* Niles, XIV, 2. 

' See McMaster, iy» 287. This continued even after the people 
had at last become suspicious of unlicensed banks. In 1820, at 
Bloomington, Ohio, a hamlet of ''ten houses . . in the edge of the prai- 
rie .. a [bank] company was formed, plates engraved, and the bank 
notes brought to the spot." Failing to secure a charter, the adven- 
turers sold their outfit at auction, fictitious names were signed to the 
notes, which were then put into fraudulent circulation. (Flint's Let- 
ters, E. W. T.: Thwaites, ix, 810.) 

» lb. 180-81. 

* Faux's Journal, Oct. 11, 1818, E. W. T.: Thwaites,xi, 171. Faux 
says that even in Cincinnati itself the bank bills of that town could 
be exchanged at stores ' * only 80 or 40 per centum below par » or United 
States' paper." 

« Flint's Letten, E. W. T.i Thwaites, ix, 18S-86. 



FINANCIAL AND MORAL CHAOS 193 

lists of them with the market values, which changed 
from day to day.^ Sometimes the county courts fixed 
rates of exchange; for instance, the County Court 
of Norfolk County, Virginia, in March, 1816, de- 
creed that the notes of the Bank of Virginia and the 
Bank of South Carolina were worth their face value, 
while the bills of Baltimore and Philadelphia and the 
District of Columbia were below par.* Merchants 
had to keep lists on which was estimated the value of 
bank bills and to take chances on the constant fluc- 
tuations of them.' ^' Of upwards of a hundred banks 
that lately figured in Indiana, Ohio, Kentucky, and 
Tennessee, the money of two is now only received in 
the land-oflSce, in payment for public lands," testifies 
Flint, writing from Jeffersonville, Indiana, in March, 
1820. "Discount," he adds, "varies from thirty to 
one hundred per cent." * By September, 1818, two 
thirds of the bank bills sent to Niles in payment for 
the Register could not "be passed for money." ^ 

"Chains" of banks were formed by which one 
member of the conspiracy would redeem its notes 
only by paying out the bills of another. Thus, if a 
man presented at the coimter of a certain bank the 
bills issued by it, he was given in exchange those of 
another bank; when these were taken to this second 

^ In Baltimore Cohens's ''lottery and exchange office" issued a list 
of neariy seventy banks, with rates of prices on their notes. The cir- 
cular gave notice that the quotations were good for one day only. 
(Niles, xrv, 896.) At the same time G. & R. Waite, with offices in New 
York, Philadelphia, and Baltimore, issued a list covering the country 
from Connecticut to Ohio and Kentucky. (lb. 415.) The rates as 
given by this firm differed greatly from those published by Cohens. 

* lb. X, 80. • Sumner: Jackson, 229. 

« Flint's Letters, E. W. T.i Thwaites, ix, 219. » Niles, xv, 60. 



194 JOHNMABSHALL 

institutioii, they were exchanged for the bills of a 
thu*d bank, which redeemed them with notes of the 
first. ^ For instance, Bigelow's bank at Jefferson* 
ville, Indiana, redeemed its notes with those of Pi- 
att's bank at Cincin,nati, Ohio; this, in turn, paid itd 
bills with those of a Vincennes sawmill and the saw- 
mill exchanged its paper for that of Bigelow's bank.* 

The redemption of their bills by the payment of 
I specie was refused even by the best State banks, and 
this when the law positively required it. Niles esti- 
mated in April, 1818, that, although many banks 
were sound and honestly conducted, there were not 
''half a dozen banks in the United States that are 
able to pay their debts as they are payable.'' • 

All this John Marshall saw and experienced. In 
1815, George Fisher* presented to the Bank of 
Virginia ten of its one-hundred-dollar notes for re- 
demption, which was refused. After several months' 
delay, during which the bank officials ignored a 
summons to appear in court, a distringas*^ was 
secured. The President of the bank, Dr. Brocken- 
brough, resisted service of the writ, and the " Sheriff 
then called upon the by-standers, as a posse comi* 
tatiLSf'' to assist him. Among these was the Chief 
Justice of the United States. Fisher had hard work 
in finding a lawyer to take his case; for months no 
member of the bar would act as his attorney.^ For 

1 Naes. XIV, 19S-96; also xv, 4S4. « lb. xvn, 164. • lb. xiv, 108. 

* A wealthy Ricbmond merchant who had married a sister of 
Marshall's wife. (See vol. n, 172, of this work.) 

» A writ directing the sheriff to seize the goods and chattels of a 
person to compel him to satisfy an obligation. Bouvier (Rawle's ed.) 
I, 590. 

' Richmond Enquirer^ Jan. 16, 1816. 

What was the outcome of this incident does not appear. Professor 



FINANCIAL AND MOJlAL CHAOS 195 

in Virginia as elsewhere — even less than in many 
States — the local banks were the most lucrative 
clients and the strongest political infhience; and they 
controlled the lawyers as well as the press. j 

In Jime> 1818, for instance, a business man in 
Pennsylvania had accumulated several hundred dol- 
lars in bills of a local bank which refused to redeem 
them in specie or better bills. Three justices of the 
peace declined to entertain suit against the bank and 
no notary public would protest the bills. In Mary- 
land, at the same time, a pian succeeded in bringing 
an action against a bank for the redemption of some 
of its bills; but the cashier, while admitting his own 
signature on the notes, swore that he could not iden- 
tify that of the bank's president, who had absented 
himself.^ 

Counterfeiting was widely practiced and, for a 
time, almost unpunished; a favorite device was the 
raising of notes, usually from five to fifty dollars. 
Bills were put in circulation piuporting to have been 
issued by distant banks that did not exist, and never 
had existed. In a single week of June, 1818, the 
cotmtry newspapers contained accounts of twenty- 
eight cases of these and similar criminal operations.' 
Sometimes a forger or counterfeiter was caught; at 
Plattsburg, New York, one of these had twenty dif- 
ferent kinds of fraudulent notes, "well executed."* 

Sumner says that the bank was dosed for a few days, but soon opened 
and went on with its business. (Sumner: Higt. Am, Currency, 74-75.) 
Sumner fixes the date in 1817, two years after the event. 

1 Nfles, XIV, 281. » lb. 814-15. 

* lb. 838; and for similar cases, see tb. 856, 806-97, 428-80. All these 
accounts were taken from newspapers at the places where criminab 
were captured. 



196 JOHN MARSHALL 

In August, 1818, Niles estimates that *'the notes of 
at least one hundred banks in the United States are 
counterfeited." ^ By the end of the year an organized 
gang of counterfeiters, forgers, and distributors of 
their products covered the whole coimtry.* Counter- 
feits of the Marine Bank of Baltimore alone were 
estimated at $1,000,000;* one-hundred-dollar notes 
of the Bank of Louisiana were scattered far and wide.* 
Scarcely an issue of any newspaper appeared without 
notices of these depredations;^ one half of the re- 
mittances sent Niles from the West were counter- 
feit.« 

Lito this chaos of speculation, fraud, and finan- 
cial fiction came the second Bank of the United 
States. The management of it, at the beginning, was 
adventurous, erratic, corrupt; its oflScers and di- 
rectors countenanced the most shameful manipula- 
tion of the Bank's stock; some of them participated 
in the incredible jobbery.^ Nothing of this, how- 
ever, was known to the coimtry at large for many 
months,^ nor did the knowledge of it, when revealed, 
afford the occasion for the popular wrath that soon 
came to be directed against the National Bank. This 
^public hostility, indeed, was largely produced by 
measures which the Bank took to retrieve the early 
business blunders of its managers. 

These blunders were appalling. As soon as it 

1 Niles, XIV, 428. « lb. xvi, 147-48; also, ib. 860, 873, 890. 

« Ib. 179, < Ib. 210. 5 Ib. 208. • Ib. 210. 

' See CatteraD, 39-50. 

^ The frauds of the directors and officers of the Bank of the United 
States were used, however, as the pretext for an effort to repeal its 
charter. On Feb. 9, 1819, James Johnson of Virginia introduced a reso- 
lution for that purpose. {AnnaUf 15th Cong. 2d Sess. m, 1140-42.) 



r 



FINANaAL AND MORAL CHAOS 197 

oi>e]ied in 1817, the Bank began to do business on the 
inflated scale which the State banks had established; 
by over-issue of its notes it increased the inflation, 
abeady blown to the bursting point. Except in New 
England, where its loans were moderate and well 
secured, it accommodated borrowers lavishly. The 
branches were not required to limit their business to 
a fixed capital; in many cases, the branch officers and 
directors, incompetent and swayed by local interest 
and feeling,^ issued notes as recklessly as did some 
of the State banks. In the West particularly, and 
also in the South, the loans made were enormous. • 
The borrowers had no expectation of paying them 
when due, but of renewing them from time to time, 
as had been the practice under State banking. 

The National branches in these regions showed a 
faint gleam of prudence by refusing to accept bills, 
of notoriously unsound local banks. This undemo- 
cratic partiality, although timidly exercised, aroused 
to activity the never-slumbering hostility of these 
local concerns. In the course of business, however, 
bills of most State banks accumulated to an immense 
amount in the vaults of the branches of the Bank 
of the United States. When, in spite of the disposi- 
tion of the branch officers to extend imending and 
unlimited indulgence to the State banks and to bor- 
rowers generally, the branches finally were compelled 
by the parent Bank to demand payment of loans and 
redemption of bills of local banks held by it; and 
when, in consequence, the State banks were forced 
to collect debts due them, the catastrophe, so long 

^ See Cattendl, 82. 



198 JOHN MABSHALL 

preparing, fell upon sections where the vices of StatQ 
banking had been practiced most flagrantly. 

Suits upon promissory notes, bonds and mort^ 
gages, already frequent, now became incessant; sher- 
iflFs were never idle. In the autumn of 1818, in a 
single small county ^ of Delaware, one hundred and 
fifty such actions were brought by the banks. In 
addition to this, records the financial chronicler of 
the period, "their vaults are loaded with bonds, 
mortgages and other securities, held in terrorem over 
the heads of several hundreds more." * At Harris- 
burg, Pennsylvania, one bank brought more than 
one hundred suits during May, 1818;* a few months 
later a single issue of one country newspaper in Penn- 
sylvania contained advertisements of eighteen farms 
and mills at sheriflf's sale; a village newspaper in New 
York advertised sixty-three farms and lots to be sold 
imder the sheriff's hammer.* " Currency " decreased 
in quantity; unemployment was amazing; scores of 
thousands of men begged for work; throngs of the 
idle camped near cities and subsisted on charity.^ 

All this the people laid at the doors of the Na- 
tional Bank, while the State banks,^ of course, en- 
couraged the popular animosity. Another order of 
the National concern increased the anger of the 
people and of the State banks against it. For more 
than a year the parent institution and its branches 
had redeemed all notes issued by them wherever pre- 
sented. Since the notes from the West and South 

1 New Castle County. » NUes, xv, 162. » lb. 59. * lb. 418. 
» Flint's Letters, E. W. T.: Thwaites, nc, 2«6. 
' They, too, asserted that institution to be the author of their woes. 
(Niles, xvn, 2.) 



FINANCIAL AND MORAL CHAOS 199 

flowed to the North and East ^ in payment for the 
manufactures and merchandise of these sections, this 
universal redemption became impossible. So, on 
August 28, 1818, the branches werp directed to 
refuse all notes except their own.* 

Thus the Bank, ''like an abandoned mother, • . 
BASTARDIZED its offspring," ' Said the enemies of the 
National Bank, among them all State banks and 
most of the people. The enforcement of redemption 
of State bank bills, the reduction of the volume of 
"currency," were the real causes of the fury with 
which the Bank of the United States and its branches 
was now assailed. That institution was the monster, 
said local orators and editors; its branches were the 
tentacles of the Octopus, heads of the Hydra.* "The 
* branches' are execrated on all hands," wrote an 
Ohio man. " We feel that to the poUcy pursued by 
them, we are indebted for all the evils we experience 
for want of a circulating medium." ^ 

The popular cry was for relief. More money, not 
less, was needed, it was said; and more banks that 
could and would loan funds with which to pay debts. 
If the creditor would not accept the ciu-rency thus 
prociu-ed, let laws be passed that would compel him 
to do so, or prevent him from collecting what his con- 
tract called for. Thus, with such demands upon 
their lips, and in the midst of a storm of lawsuits, the 
people entered at last that inevitable period of bank- 

* Catterall, 88-87. 

* lb. 51-53; and see NUes. xv, «5. • Catterall, 38. 

^ Monster, Hydra, Cerberus, Octopus, and names of similar import 
were popularly applied to the Bank of the United States. (See Craw- 
ford's speech, supra, 175.) 

* Niles, XV, 5. 



200 JOHN MARSHALL 

ruptcy to which for years they had been drawing 
nearer and for which they were themselves largely 
responsible. 

Bankruptcy laws had already been enacted by some 
States; and if these acts had not been drawn for the 
benefit of speculators in anticipation of the possible 
evil day, the "insolvency" statutes certainly had 
been administered for the protection of rich and dis- 
honest men who wished to escape their liabilities, 
and yet to preserve their assets. In New York ^ the 
debtor was enabled to discharge all accounts by 
turning over such property as he had; if he owed ten 
thousand dollars, and possessed but fifty dollars, his 
debt was cancelled by the surrender of that sum. 
For the honest and prudent man the law was just, 
since no great discrepancy usually existed between 
his reported assets and Jiis liabilities. But lax ad- 
ministration of it afforded to the dishonest adven- 
, turer a shield from the righteous consequences of his 
^wrongdoing. 

The "bankruptcies" of knavish men were com- 
mon operations. One merchant in an Eastern city 
"failed," but contrived to go on living in a house for 
which he "was offered $200,000 in real money."* 
Another in Philadelphia became "insolvent," yet 
had $7000 worth of wine in his cellar at the very 
time he was going through "bankruptcy."* A mer- 
chant tailor in the little town of York, Pennsylvania, 
resorted to bankruptcy to clear himself of eighty- 
four thousand dollars of debt.^ 

1 Act of April 3, 1811, law of New York, 1811, 205-21. 
» Niles, XVI, 257. » lb. « lb. xvn, 147. 



FINANCIAL AND MORAL CHAOS 201 

In their speculations adventurous men counted on 
the aid of these legislative acts for the relief of 
debtors, " Never . • have any . . laws been more pro- 
ductive of crime than the insolvent laws of Mary- 
land," testifies Niles.^ One issue of the Federal 
Gazette contained six columns of bankruptcy notices, 
and these were only about "one-third of the per- 
sons" then "* going through our mill.'" Several 
"bankrupts" had been miUionaires, and continued 
to ^Hive in splendid affluence^ . . their wives and 
children, or some kind relative, having been made 
rich through their swindlings of the people."* 
Many "insolvents" were bankers; and this led Niles 
to propose that the following law be adopted : 

" * Whereas certain persons . . unhnovm^ have peti- 
tioned for the establishment of a bank at : 

" * Be it enacted, that . . these persons, . . shall 
have liberty to become bankkupts, and may legally 
swindle as much as they can.' " * 

In a Senate debate in March, 1820, for a proposed 
new National Bankruptcy Act,* Senator Harrison 
Gray Otis of Massachusetts moderately stated the 
results of the State insolvency laws. "Merchants 
and traders . . are harassed and perplexed by twenty 

^ '*I have known several to calculate upon the 'relief from them, 
just as they would do on an accommodation at bank, or on the payment 
of debts due to them ! If we succeed in such and such a thing, say they 
— very well; if not, we can get the benefit of the insolvent laws . . 
Where one prudent and honest man applies for such benefit, one hun- 
dred rogues are facilitated in their depredations." (Niles, xvn, 115.) 

* Ih. » 76. XV, 283. 

^ The bankruptcy law which Marshall had helped to draw when 
in Congress (see voL ii, 481-82, of this work) had been repealed in 
1808. (Annals, 8th Cong. Ist Sees. 215, 6^, 681. For reasons for 
the repeal see ib. 616-22.) 



302 JOHNMABSHALL 

different systems of municipal laws, often repugnant 
to each other and themselves; always defective; sel- 
dom executed in good faith; prolific in endless frauds, 
perjuries, and evasions; and never productive of . . 
any sort of justice, to the creditor. Nothing could be 
, • comparable to their pernicious effects upon the 
pubUc moracls." ^ Senator Prentiss Mellen, of the 
same State, described the operation of the bank- 
ruptcy mill thus: **We frequently witness transac- 
tions, poisoned throughout with fraud . . in which ott 
creditors are deceived and defrauded. . . The man 
* pretends to be a bankrupt; and having converted 
a large portion of his property into money . . he . • 
closes his doors; . . goes through the form of offering 
to give up all his property, (though secretly re- 
taining thousands,) on condition of receiving a dis- 
charge from his creditors. . • In a few months, or 
perhaps weeks, he recommences busmess, and finds 
himself . . with a handsome property at command." * 
Senator James Burrill, Jr., of Rhode Island was 
equally specific and convincing. He pictured the 
career of a dishonest merchant, who transfers prop^ 
erty to relatives, secures a discharge from the State 
bankruptcy courts, and ^^in a few days . . resumes 
his career of folly, extravagance, and rashness. . • 
Thus the creditors are defrauded, and the debtor, 
in many cases, Uves in affluence and splendor.*' • 
Flint records that " mutual credit and confidence are 
almost torn up by the roots." * 

1 Anncda, 16th Cong. 1st Sess. 505. > 16. 513. » 16. 517-18. 
* Flint's Letters, E. W. T.i Thwaites, ix, «25. 
In reviewing Sketches cf America by Henry Bradshaw Fearon, an 
Englishman who travded through the United States, the QuarteAy 



FINANCIAL AND MORAL CHAOS 20S 

It was soon to be the good fortune of John Mar- 
shall to declare such State legislation null and void 
because in violation of the National Constitution. 
Never did common honesty, good faith, and fair 
dealing need such a stabilizing power as at the mo- 
ment Marshall furnished to the American people. 
In most parts of the country even insolvency laws 
did not satisfy debtors; they were trying to avoid the 
results of their own acts by securing the enactment 
of local statutes that repealed the natural laws of 
human intercourse — of statutes that expressed the 
momentary wish of the uncomfortable, if honest, 
multitude, but that r^resented no less the devices 
of the clever and imscrupulous. Fortunate, indeed, 
was it for the United States, at this critical time in 
its development, that one department of the Govern- 
ment could not be swayed by the passion of the hour, 
and thrice happy that the head of that department 
was John Marshall. 

The impression made directly on Marshall by 
what took place under his very eyes in Virginia was 
strengthened by eyents that occiu-red in Kentucky. 
All his brothers and sisters, except two, besides 
numerous cousins and relatives by marriage, lived 
there. Thus he was advised in an intimate and per^ 
sonal way of what went forward in that State. ^ 

Renew of London scathingly denounced the frauds perpetrated by 
means of insolvent laws. (Quarterly Review, xxi, 165.) 

^ None of these letters to Marshall have been preserved. Indeed, 
only a scant half-^ozen of the original great number of letters written 
him even by prominent men during his long life are in existence. For 
those of men like Story and Pickering we are indebted to copies pre- 
served in their piq>ers. 

Marshall, at best, was incredibly negligent of hb correspondence 



^L 



^ 



V >^ ^ ^ 



204 JOHN MARSHALL 

The indebtedness of Kentucky State banks, and of 
individual borrowers to the branches of the National 
Bank located in that Commonwealth, amounted 
to more than two and one half millions of dollars.^ 
"This is the trifling sum which the people of Ken- 
tucky are called upon to pay in specie I " * exclaimed 
a Kentucky paper. The people of that State owed 
the local banks about $7,000,000 more, while the 
total indebtedness to all financial institutions within 
Kentucky was not far from $10,000,000.* The sacri- 
.fice of property for the satisfaction of mortgages 
'grew ever more distressing. At Lexington, a house 
and lot, for which the owner had refused $15,000, 
brought but $1300 at sheriff's sale; another costing 
$10,000 sold under the hammer for $1500.* Even 
slaves could be sold only at a small fraction of their 
ordinary market price. 

It was the same in other States. Within Marshall's 
personal observation in Virginia the people were 
forced to eat the fruits of their folly. "Lands in this 
State cannot now be sold for a year's rent," wrote 
Jefferson.^ A farm near Easton, Pennsylvania, 
worth $12,500, mortgaged to secure a debt of $2500, 
was taken by the lender on foreclosure for the 
amount of the loan. A druggist's stock of the retail 
value of $10,000 was seized for rent by the landlord 
and sold for $400.^ Li Virginia a little later a farm 

as be was of all other ordinary details of life. Most other important 
men of the time kept copies of their letters; Marshall kept none; and 
if he preserved those written to him, nearly all of them have disap- 
peared. 

1 Nfles, XV, 885. > Ih. « lb. xvi, 261. * Ih. xvn, 85. 

' Jefferson to Adams, Nov. 7> 1819» Works: Ford, xn, 145. 

• Niles, xvn, 85. 



FINANCIAL AND MORAL CHAOS 205 

of three hundred acres with improvements worth, 
at the lowest estimate, $1500, sold for $300; two 
wagon horses costing $200 were sacrificed for $40. 

Mines were shut down, shops closed, taxes un- 
paid. "The debtor . • gives up his land, and, ruined 
and undone, seeks a home for himself and his family 
in the western wilderness." ^ John Quincy Adams 
records in his diary: "Staple productions .. are 
falling to . • less than half the prices which they 
have lately borne, the merchants are crumbling to 
ruin, the manufactures perishing, agriculture stag- 
nating, and distress imiversal in every part of the 
country." * 

During the summer and autimm of 1818, the 
popular demand for legislation that would suspend 
contracts, postpone the payment of debts, and stay 
the judgment of courts, became strident and per- 
emptory. "Our greatest real evil is the question 
between debtor and creditor, into which the banks 
have plunged us deeper than would have been pos- 
sible without them," testifies Adams. "The bank 
debtors are everywhere so numerous and powerful 
that they control the newspapers throughout the 
Union, and give the discussion a timi extremely 
erroneous, and prostrate every principle of political 
economy." ' 

This was especially true of Kentucky. Through- 
out the State great assemblages were harangued 
by oratorical "friends of the people." "The reign 
of political quackery was in its glory." * Why the 

* NUes, xvn, 185. 

' Memoirs, J. Q. A.: Adams, May 97, 1819, nr, 875. 

* 16. 891. * Collins, 88. 



206 JOHN MARSHALL 

scarcity of money when that commodity was most 
needed? Why the lawsuits for the collection of 
debts, the enforcement erf bonds, the foreclosure 
of mortgages, instead of the renewal of loans, to 
which debtors had been accustomed? Financial ma^ 
nipulation had done it all. The money power was 
responsible for the misery of the people. Let that 
author and contriver of human suffering be sup- 
pressed. 

What could be easier or more just than to enact 
legislation that would lift the burden of debt that 
was crushing the people? The State banks would 
not resist — were they not under the control of the 
people's Legislature? But they were also at the 
mercy of that remorseless creature of the National 
Government, the Bank of the United States. That 
malign Thing was the real cause of all the trouble.^ 
Let the law by which Congress had given illegiti^ 
mate life to that destroyer of the people's well- 
being be repealed. If that could not be done because 
so many of the National Legislature were corruptly 
interested in the Bank, the States had a sure weapon 
with which to destroy it — or at least to drive it out 
of business in every member of the Union. 
> That weapon was taxation. Let each Legislature, 

by special taxes, strangle the branches of the Na- 
tional Bank operating in the States. So came a 
popular determination to exterminate, by State 
action, the second Bank of the United States. Na- 

^ "The disappointment is altogether ascribed to the Bank of the 
U.S." (King to Mason, Feb. 7, 1819. King, VI. 205.) King's testimony 
is uncommonly trustworthy* His son was an officer of the branch of 
ChiUicothe, Ohio. 



FINANCIAL AND MORAL CHAOS 207 

tional power should be brought to its knees by local 
authority! National agencies should be made help* 
less and be dispatched by State prohibition and State 
taxation! The arm of the National Government 
should be paralyzed by the blows showered on it 
when thrusting itself into the afifairs of "sovereign** 
States ! Already this process was well under way. 

The first Constitution of Indiana, adopted soon 
after Congress had authorized the second Bank of 
the United States, prohibited any bank chartered 
outside the State from doing business within its 
borders.* During the very month that the National 
Bank opened its doors in 1817, the Legislative of 
Maryland passed an act taxing the Baltimore branch 
$16,000 annually. Seven nionths afterward the 
Legislature of Tennessee enacted a law that any 
bank not chartered under its authority should pay 
$60,000 each year for the privilege of banking in 
that State. A month later Georgia placed a special 
tax on branches of the Bank of the United States. 
I The Constitution of Illinois, adopted in August, 
1818, forbade the establishment of any but State 
banks. In December of that year North Carolina 
taxed the branch of the National Bank in that State 
$6000 per annum. A few weeks later Kentucky laid 
an annual tax of $60,000 on each of the two branches 
of the Bank of the United States located at Lex- 
ington and Frankfort. Three weeks before John 
Marshall delivered his opinion in M'Culloch vs. 
Maryland, Ohio enacted a statute placing a yearly 

^ See Article x, Sectkm 1, Confftitution of Indiana, as adopted 
June 29, 1816. 






208 JOHN MARSHALL 

tax of $50,000 on each of the two National Bank 
branches then doing business in that State. ^ 

Thus the extinction of the second Bank of the 
United States by State legislation appeared to be 
inevitable. The past management of it had well 
deserved this fate; but earnest efforts were now in 
operation to recover it from former blunders and to 
retrieve its fortunes. The period of corruption was 
over, and a new, able, and honest management was 
about to take charge. K, however, the States could 
destroy this National fiscal agency, it mattered not 
how well it might thereafter be conducted, for no- 
thing could be more certain than that the local in- 
fluence of State banks always would be great enough 
to induce State Legislatures to lay impossible bur- 
dens on the National Bank. 

Such, then, was the situation that produced those 
opinions of Marshall on insolvency, on contract, 
and on a National bank, delivered during February 
and March of 1818; such the National conditions 
which confronted him during the preceding simmier 
and autumn. He could do nothing to ameliorate 
these conditions, nothing to relieve the universal 
unhappiness, nothing to appease the popular dis- 
content. But he could establish great National prin- 
ciples, which would give steadiness to American 
business, vitality to the National Government; and 
which would encourage the people to practice hon- 
esty, prudence, and thrift. And just this John Mar- 
shall did. When considering the enduring work he 
performed at this time, we must have in our thought 

^ See Catterall, 64-65, and sources there cited. 



FINANCIAL AND MORAL CHAOS 209 

the circumstances that made that work vitally neces- 
sary. 

One of the earliest cases decided by the Supreme 
Court in 1819 involved the Bankrupt Law of New 
York. On November 25, 1817, Josiah Sturges ^ of 
Massachusetts sued Richard Crowninshield of New 
York in the United States Circuit Court for the 
District of Massachusetts to recover upon two prom- 
issory notes for the sum of $771.86 each, exe- 
cuted March 22, 1811, just twelve days before the 
passage, April 3, 1811, of the New York statute 
for the relief of insolvent debtors. The defendant 
pleaded his discharge under that act. The judges 
were divided in opinion on the questions whether 
a State can pass a bankrupt act, whether the New 
York law was a bankrupt act, and whether it im- 
paired the obligations of a contract. These ques- 
tions were, accordingly, certified to the Supreme 
Court. 

The case was there argued long and exhaustively 
by David Daggett and Joseph Hopkinson for Stiwges 
and by David B. Ogden and William Hunter for 
Crowninshield. In weight of reasoning and full cita- 
tion of authority, the discussion was inferior only 
to those contests before the Supreme Bench which 
have found a place in history. 

On February 17, 1819, Marshall delivered the 
unanimous opinion of the court.^ Do the words of 
the Constitution, " Congress shall have power . . 
to establish . . uniform laws on the subject of 

^ Spelled Siurgis on the manuscript records of the Supreme Court 
> 4 Wheaton, in. 



910 JOHN MARSHALL 

bankruptcies throughout the United States'* take 
from the States the right to pass such laws? 

Before the adoption of the Constitution, b^ins 
Marshall, the States "united for some purposes, 
but, in most respects, sovereign," could "exercise 
almost every legislative power." The powers of the 
States under the Constitution were not defined in 
that instrument. "These powers proceed, not from 
the people of America, but from the people of the 
several states; and remain, after the adoption of 
the constitution, what they were before, except so 
far as they may be abridged " by the Nation's fun- 
damental law. 

While the "mere grant of a power to Congress" 
does not necessarily mean that the States are for- 
bidden to exercise the same power, such concurrent 
power does not extend to "every possible case" not 
expressly prohibited by the Constitution. "The 
confusion resulting from such a practice would be 
endless." As a general principle, declares the Chief 
Justice, "whenever the terms in which a power is 
granted to Congress, or the nature of the power, 
required that it should be exercised exclusively by 
Congress, the subject is as completely taken from 
the state legislatures as if they had been expressly 
forbidden to act on it." ^ 

Does this general principle apply to bankrupt 
laws? Assuredly it does. Congress is empowered to 
"establish imiform laws on the subject throughout 
the United States." Uniform National legislation is 
"incompatible with state legislation" on the same 

^ 4 Wheaton, 191^-98. 



FINANCI4LL AND MORAL CHAOS 811 

subject. Marshall draws a distinction between bank- 
rupt and insolvency laws, although ^^the line of 
partition between them is not so distinctly marked " 
that it can be said, ""with positive precision, what 
belongs exclusively to the one, and not to the other 
dass of laws/* ^ 

He enters upon an examination of the nature of 
insolvent laws which States may enact, and bank- 
rupt laws which Congress may enact; and finds that 
"there is such a connection between them as to ren- 
der it difficult to say how far they may be blended 
together. • • A bankrupt law may contain those 
regulations which are generally found in insolvent 
laws**; while "an insolvent law may contain those 
which are common to a bankrupt law.** It is " ob- 
vious,'* then, that it would be a hardship to " deny 
to the state legislatures the power of acting on this 
subject, in consequence of the grant to Congress.** 
The true rule — ** certainly a convenient one** — is 
to "consider the power of the states as existing over 
such cases as the laws of the Union may not reach.** * 

But, whether this common-sense construction is 
adopted or not, it is undeniable that Congress may 
exercise a power granted to it or decline to exercise 
it. So, if Congress thinks that uniform bankrupt 
laws "ought not to be established** throughout the / 
country, surely the State Legislatures ought not, 
on that account, to be prevented from passing 
bankrupt acts. The idea of Marshall, the statesman, 
was that it was better to have bankrupt laws of some 
kind than none at all. " It is not the mere existence 

1 4 Wheaton, 194. > lb. 105. 



/ 



«12 JOHN MARSHAI/i 

of the power [in Congress], but its exercise, which is 
incompatible with the exercise of the same power by 
the states. It is not the right to establish these mii- 
form laws, but their actual establishment, which is 
inconsistent with the partial acts of the states/' ^ 

Even should Congress pass a bankrupt law, that 
action does not extinguish, but only suspends, the 
power of the State to legislate on the same subject. 
When Congress repeals a National bankrupt law it 
merely "removes a disability'* of the State created 
by the enactment of the National statute, and last- 
ing only so long as that statute is in force. In short, 
" until the power to pass uniform laws on the subject 
of bankruptcies be exercised by Congress, the states 
are not forbidden to pass a bankrupt law, provided it 
contain no principle which violates the 10th section 
of the first article of the constitution of the United 
States.'* * 

Having toilsomely reached this conclusion, Mar- 
shall comes to what he calls "the great question on 
which the cause must depend " : Does the New York 
\Bankrupt Law " impair the obUgation of contracts "?» 

What is the eflFect of that law? It "liberates the 
person of the debtor, and discharges him from all 
liability for any debt previously contracted, on his 
siurendering his property in the manner it pre- 
scribes." Here Marshall enters upon that series of 
expositions of the contract clause of the Constitu- 

1 4 Wheaton, 196. 

^ ^*No State shall • . emit Bills of Credit; make any Thing but gold 
and silver Coin a Tender in Payment of Debts; pass any . . ex post 
facto Law, or Law impairing the Obligation of Contracts." 

» 4 Wheaton, 100-97. 



FINANCIAL AND MORAL CHAOS 218 

tion which, next to the Nationalism of his opinions^ 
is, perhaps, the most conspicuous feature of his 
philosophy of government and hiunan intercourse.^ 
" What is the obligation of a contract? and what will 
impair it?** * 

It would be hard to find words " more intelligible, 
or less liable to misconstruction, than those which 
are to be explained." With a tinge of patient im- 
patience, the Chief Justice proceeds to define the 
words "contract," "impair," and "obligation," much 
as a weary school teacher might teach the simplest 
lesson to a particularly dull pupil. 

"A contract is an agreement in which a party 
undertakes to do, or not to do, a particular thing. 
The law binds him to perform his undertaking, and 
this is, of course, the obligation of his contract. Li 
the case at bar, the defendant has given his prom- 
issory note to pay the plaintiff a sum of money on 
or before a certain day. The contract binds him to 
pay that sum on that day; and this is its obligation. 
Any law which releases a part of this obligation, 
must, in the literal sense of the word, impair it. 
Much more must a law impair it which makes it 
totally invalid, and entirely discharges it. 

"The words of the constitution, then, are express, 
and incapable of being misunderstood. They admit 
of no variety of construction, and are acknowledged 
to apply to that species of contract, an engagement 
between man and man, for the payment of money, 
which has been entered into by these parties." ' 

^ For the proceedings in the Constitutional Convention on thia 
dauae, see vol. m, chap, x, of this work. 
« 4 Wheaton, 197. » lb. 197-98. 



214 JOHN MARSHALL 

What are the arguments that such law does not 
violate the Constitution? One is that» since a con- 
tract "can only bind a man to pay to the full extent 
of his property, it is an implied condition that he 
may be discharged on surrendering the whole of it/* 
This is simply not true, says Marshall. When a 
contract is made, the parties to it have in mind, 
'not only existing property, but "fut(u« acquisitions. 
Industry, talents and integrity, constitute a fimd 
which is as confidently trusted as property itself. 
Future acquisitions are, therefore, liable for con- 
tracts; and to rdease them from this liability im- 
pairs their obligation." ^ 

Marshall brushes aside, almost brusquely, the 
argument that the only reason for the adoption of 
the contract clause by the Constitutional Conven- 
tion was the paper money evil; that the States 
always had passed bankrupt and insolvent laws; 
and that if the framers of the Constitution had 
intended to deprive the States of this power, "in- 
solvent laws would have been mentioned in the 
prohibition.'* 

No power whatever, he repeats, is conferred on 

the States by the Constitution. That instrument 

foimd them "in possession'* of practically all legis- 

llative power and either prohibited "its future 

jCxercise entirely," or restrained it "so far as national 

^policy may require." 

While the Constitution permits States to pass 
bankrupt laws "until that power shall be exercised 
by Congress," the fundamental law positivdy for- 

1 4 Wheatcm, 198. 



FINANCIAL AND MORAL CHAOS 216 

bids the States to "introduce into such laws a 
clause which discharges the obligations the bank- 
rupt has entered into. It is not admitted that, 
without this principle, an act cannot be a bankrupt 
law; and if it were, that admission would not change 
the constitution, nor exempt such acts from its 
prohibitions/* ^ 

There was, said Marshall, nothing in the argument 
that, if the f ramers of the Constitution had intended 
to "prohibit the States from passing insolvent 
laws,*' they would have plainly said so. "It was not 
necessary, nor would it have been safe" for them to 
have enumerated "particular subjects to which the 
principle they intended to establish should apply.'* 

On this subject, as on every other d^t with in 
the Constitution, fundamental principles are set 
out. What is the one involved in this case? It is 
"the inviolability of contracts. This principle was 
to be protected in whatsoever form it might be 
assailed. To what purpose eniunerate the particular 
modes of violation which should be forbidden, when 
it was intended to forbid all? . . The plain and simple 
declaration, that no state shall pass any law im- 
pairing the obligation of contracts, includes in- 
solvent laws and all other laws, so far as they 
infringe the principle the convention intended to 
hold sacred, and no farther." * 

At this point Marshall displays the humanitarian 
which, in his character, was inferior only to the 
statesman. He was against imprisonment for debt, 
one of the many brutal customs still practiced. 

^ 4 Wheaton, 169. > lb. 200. 



< 



216 JOHN MABSHALL 

•*The convention did not intend to prohibit the 
passage of all insolvent laws/' he avows. "To pun- 
ish honest insolvency by imprisonment for life, and 
to make this a constitutional principle, would be an 
excess of inhumanity which will not readily be im- 
puted to the illustrious patriots who framed our 
constitution, nor to the people who adopted it. . . 
Confinement of the debtor may be a punishment 
for not performing his contract, or may be allowed 
as a means of inducing him to perform it. But the 
state may refuse to inflict this punishment, or may 
withhold this means and leave the contract in full 
^force. Imprisonment is no part of the contract, and 
simply to release the prisoner does not impair its 
obligation.'* ^ 

Following his provoking custom of taking up a 
point with which he had already dealt, Marshall 
harks back to the subject of the reason for inserting 
the contract clause into the Constitution. He re- 
states the argument against applying that provision 
to State insolvent laws — that, from the beginning, 
the Colonies and States had enacted such legislation; 
that the history of the times shows that "the mind 
of the convention was directed to other laws which 
were fraudulent in their character, which enabled 
the debtor to escape from his obligation, and yet 
hold his property, not to this, which is beneficial in 
its operation.'* 

But, he continues, "the spirit of . . a constitu- 
tion** is not to be determined solely by a partial 
view of the history of the times when it was adopted 

} 4 Wheaton, 200-01. 



FINANCIAL AND MORAL CHAOS 217 

— "the spirit is to be collected chiefly from its 
words/' And "it would be dangerous in the extreme 
to infer from extrinsic circimistances, that a case 
for which the words of an instrument expressly 
provide, shall be exempted from its operation/' 
Where language is obscure, where words conflict, 
"construction becomes necessary," But, when lan- 
guage is clear, words harmonious, the plain mean- 
ing of that language and of those words is not "to 
be disregarded, because we believe the framers of 
that ins^tnunent could not intend what they say." ^ 

The practice of the Colonies, and of the States 
before the Constitution was adopted, was a weak 
argument at best. For example, the Colonies and 
States had issued paper money, emitted bills of 
credit, and done other things, all of which the Con- 
stitujtion prohibits. "If the long exercise of the 
power to emit bills of credit did not restrain the 
convention from prohibiting its futiu^ exercise, 
neither can it be said that the long exercise of the 
power to impair the obligation of contracts, should 
prevent a similar prohibition." The fact that in- 
solvent laws are not forbidden " by name " does not 
exclude them from the operation of the contract 
clause of the Constitution. It is "a principle which 
is to be forbidden; and this principle is described in 
as appropriate terms as our language affords." * 

Perhaps paper money was the chief and impelling 
reason for making the contract clause a part of the 
National Constitution. But can the operation of 
that clause be confined to paper money? " No court 

» 4 Wheaton, «02. » lb. «0S-04. 



218 JOHN MARSHALL 

can be justified in restricting such compr^ensive 
words to a particular mischief to which no allusion 
is made/' The words must be given "their full 
and obvious meaning/* ^ Doubtless the evils of 
paper money directed the Convention to the subject 
of contracts; but it did far more than to make paper 
money impossible thereafter. "Li the opinion of 
the convention, much more remained to be done. 
The same mischief might be effected by other means. 
To restore public confidence completely, it was 
necessary not only to prohibit the use of particular 
means by which it might be effected, but to pro- 
hibit the use of any means by which the same 
mischief might be produced. The convention ap- 
pears to have intended to estajblish a great principle, 
that contracts should be inviolable. The constitu- 
tion therefore declares, that no state shall pass ^ any 
law impairing the obligation of contracts.'** ^ From 
all this it follows that the New York Bankruptcy 
Act of 1812 is unconstitutional because it impaired 
the obligations of a contract. 

The opinion of the Chief Justice aroused great 
excitement.' It, of course, alarmed those who had 
been using State insolvent laws to avoid payment 
of their debts, while retaining much of their wealth. 
It also was imwelcome to the great body of honest, 
though imprudent, debtors who were struggling to 
lighten their burdens by legislation. But the more 
thoughtful, even among radicals, welcomed Mar- 
shall's pronouncement. Niles approved it heartily.* 

* 4 Wheaton, 205. * lb. 906. » NUes, xvi, 76. 

^ *'It will probably, make some great revolutiona in property, and 



FINANCIAL AND MORAL CHAOS 219 

Gradually^ surely, Marshall's simple doctrine 
grew in favor throughout the whole country, and is 
to-day a vital and enduring element of American 
thought and character as well as of Constitutional 
law. 

As in Fletcher vs. Peck, the principle of the in- 
violability of contracts was applied where a State 
and individuals are parties, so the same principle 
was now asserted in Sturges vs. Crowninshield as to 
State laws impairing the obligation of contracts 
between man and man. At the same session, in the 
celebrated Dartmouth College case,^ Marshall an- 
nounced that this principle also covers charters 
granted by States. Thus did he develop the idea 
of good faith and stability of engagement as a life- 
giving principle of the American Constitution. 

raise up many from penury . . and cause others to descend to the con- 
dition that becomes honett men, by compelling a payment of their debts 
— as every honest man ou^t to be compelled to do, if ever able. . • It 
ought not to be at any one's discretion to say when, or under what 
convenient circumstances, he will toipe off his debts, by the benefit of 
an insolvent law — as some do every two or three years; or, just as 
often as they can get credit enough to make any thing by it." (Niles, 
XVI, %.) 

^ See vrfrth next chapter. 



CHAPTER V 

' THE DARTMOUTH COLLEGE CASE 

Such a contract, in relation to a publkk institution would be absurd and com- 
traiy to the principles of all governments. 

(Chief Justice William M. Richardson.) 

It would seem as if the state legislatuies have an invincible hostility to the 
sacredness of charters. (Marshall) 

Ptehaps no judicial proceedings in this country ever involved more important 
consequences. {North American Review, 1820.) 

It is the legitimate business of government to see that contracts are fulfilled* 
that diarters are kept invblate, and the foundations of human confidence not 
rudely or wantonly disturbed. (John fiske.) 

Just before Marshall delivered his opinion in Sturges 
vs. Crowninshield, he gave to the Nation another 
state paper which profoundly influenced the develop* 
ment of the United States. It was one of the trilogy 
of Constitutional expositions which make historic 
the February term, 1819, of the Supreme Court of 
the United States. This pronoimcement, like that 
in the bankruptcy case, had to do with the stability 
of contract. Both were avowals that State Legis- 
latures cannot, on any pretext, overthrow agree- 
ments, whether in the form of engagements between 
individuals or franchises to corporations. Both were 
meant to check the epidemic of repudiatory le^sla- 
tion which for three years had been sweeping over 
the land and was increasing m virulence at the time 
when Marshall prepared them. The Dartmouth 
opinion was wholly written in Virginia during the 
summer, autumn, or winter of 1818; and it is 
probable that the greater part of the opinion in 



THE DARTMOUTH COLLEGE CASE 221 

Stui^es vs. Crowninshield was also prepared when 
the Chief Justice was at home or on his vacation. 

Marshall's economic and political views, formed 
as a young man,^ had been strengthened by every 
event that had since occurred until, in his sixty- 
fifth year, those early ideas had become convictions 
so deep as to pervade his very being. The sacred- 
ness of contract, the stability of institutions, and, 
above all. Nationalism in government, were, to John 
Marshall, articles of a creed as holy as any that ever 
inspired a religous enthusiast. 

His opinion of contract had already been ex- 
pressed by him not only in the sensational case of 
Fletcher V8. Peck,* but far more rigidly two years 
later, 1812, in the important case of the State of 
New Jersey vs. Wilson.' In 1768, the Proprietary 
Grovemment of New Jersey agreed to purchase a 
tract of land for a band of Delaware Indians, pro- 
vided that the Indians would surrender their title 
to all other lands claimed by them in New Jersey. 
The Indians agreed and the contract was embodied 
in an act of the Legislature, which further provided 
that the lands purchased for the Indians should '' not 
hereafter be subject to any tax, any law, usage or 
custom to the contrary thereof, in any wise notwith- 
standing/' * The contract was then executed, the 
State purchasing lands for the Indians and the latter 
relinquishing the lands claimed by them. 

After forty years the Indians, wishing to join 
other Delawares in New York, asked the State of 

^ See vol. I, 147, 281, of this work. 

' See vol. m, chap, x, of this work. 

.•7Cranch,164. W6. 165. 



222 JOHN MABSHALL 

New Jersey to authorize the sale of their lands. This 
was done by an act of the Legislature, and the lands 
were sold. Soon after this, another act was passed 
which repealed that part of the Act of 1758 exempt- 
ing the lands from taxation. Accordingly the lands 
were assessed and payment of the tax demanded. 
The purchasers riesisted and, the Supreme Court of 
New Jersey having held valid the repealing act, 
took the case to the Supreme Court of the United 
States. 

In a brief opinion, in which it is worthy of par- 
ticular note that the Supreme Court was imanimous, 
Marshall says that the Constitution protects "con- 
tracts to which a state is a party, as well as • . 
contracts between individuals. . . The proceedings 
[of 1758] between the then colony . • and the In- 
dians . . is certainly a contract clothed in forms of 
unusual solemnity.'* The exemption of the lands 
from taxation, " though for the benefit of the Indians, 
is annexed, by the terms which create it, to the land 
itself, not to their persons." This element of the 
contract was valuable to the Indians, since, "in the 
event of a sale, on which alone the question could 
become material, the value [of the lands] would be 
enhanced '* by the exemption. 

New Jersey " might have insisted on a surrender 
of this privilege as the sole condition on which a sale 
of the property should be allowed"; but this had 
not been done and the land was sold " with the assent 
of the state, with all its privileges and immunities. 
The pmrchaser succeeds, with the assent of the state, 
to all the rights of the Indians. He stands, with 



\ 

* 

THE DARTMOUTH COLLEGE CASE 22S 

respect to this land, in their place, and claims the 
benefit of their contract. This contract is certainly 
impaired by a law which would annul this essential 
part of it.'* * 

After his opinions in Fletcher vs. Peck and in New 
Jersey vs. Wilson, nobody could have expected from 
John Marshall any other action than the one he 
took in the Dartmouth College case.^ 

The origins of the Dartmouth controversy are 
tangled and obscure. When on December 23, 1765, 
a little ocean-going craft, of which a New England 
John Marshall ' was skipper, set sail from Boston 
Harbor for England with Nathaniel Whitaker and 
Samson Occom on board,^ a succession of curious 
events began which, two generations afterward, 
terminated in one of the most influential decisions 
ever rendered by a court. Whitaker was a preacher 
and a disciple of George Whitefield; Occom was 
a yoimg Indian, converted to Christianity by one 
Eleazar Wheelock, and endowed with imcommon 
powers of oratory. 

Wheelock had built up a wilderness school to which 
were admitted Indian youth, in whom he became 
increasingly interested. Occom was one product of 
his labors, and Wheelock sent him to England as 
a living, speaking illustration of what his school 

» 7 Cranch, 160-67. 

' This was true also of the entire court, since all the Justices con- 
curred in Marshall's opinions in both cases as far as the legislative 
violations of the contract clause were concerned. 

' He was not at all related to the Chief Justice. See vol. i» foot- 
note to 15-16, of this work. 

^ Chase: History qf Dartnundh Cottege and the Tovm cf Hanover, 
New Hampshire, 1,49. 



224 JOHN MABSHALL ' 

could do if given financial support. Whitaker went 
with the devout and talented Indian as the business 
agent. ^ 

' Their mission was to raise funds for the prosecu- 
tion of this educational and missionary work on the 
American frontier. They succeeded in a manner 
almost miraculous. Over eleven thousand pounds 
were soon raised,^ and this fund was placed under 
the control of the Trustees, at the head of whom 
was the Earl of Dartmouth, one of the principal 
donors.^ From this circmnstance the name of this 
nobleman was given to Wheelock's institution. 
On DecembCT IS, 1769, John Wentworth, Royal 
) Governor of the Province of New Hampshire, 
granted to Wheelock a charter for his school. It 
was, of course, in the name of the sovereign, but it is 
improbable that George HI ever heard of it.* This 
charter sets forth the successful efforts of Wheelock, 
"at his own expense, on his own estate, ** to establish 
a charity school for Indian as well as white youth, 
in order to spread " the knowledge of the great Re- 
deemer among their savage tribes"; the contribu- 
tions to the cause; the trust, headed by Dartmouth 
— and all the other facts concerning Wheelock's 
adventure. Because of these facts the charter 
estabUshes "Dartmouth College'* for the edu- 
cation of Indians, to be governed by "one body 
corporate and politick, • • by the name of the 
Trustees of Dartmouth College.'* 

. 1 Chase, 45-48. * lb. 59. » lb. 54-55. 

^ Dartmouth and the English Trustees opposed incorporation and 
the Bishops of the Church of England violently resisted Wheelock's 
whole project. (lb. 90.) 



THE DARTMOUTH COLLEGE CASE 225 

These Trustees are constituted "forever here- 
after • • in deed, act, and name a body corporate 
and politick/* and are empowered to buy, receive, 
and hold lands, "jurisdictions, and franchises, for 
themselves and their successors, in fee simple, or 
otherwise howsoever." In short, the Trustees are 
authorized to do anything and everything that they 
may think proper. Wheelock is made President of 
the College, and given power to " appoint, . . by his 
last will *' whomever he chooses to succeed himself 
as President of the College. 

The charter grants to the Trustees and to "their 
successors forever," or " the major part of any seven 
or more of them convened," the power to remove 
and choose a President of the College, and to fill any 
vacancy in the Board of Trustees occasioned by 
death, or "removal," or any other cause. All this is 
to be done if seven Trustees, or a majority of seven, 
are present at any meeting. .Also this majority of 
seven of the twelve Trustees, if no more attend a 
meeting, are authorized to make all laws, rules, and 
regulations for the College. Other powers are 
granted, all of which the Trustees and their suc- 
cessors are "to have and to hold . . forever." ^ 
Under this charter, Dartmouth College was estab- 
lished and, for nearly half a century, governed and 
managed. 

Eleazar Wheelock died in 1779, when sixty-eight 

^ Farrar: Report qf ike Case qf ike TrtuUei qf Dartmouth College 
againat William H. Woodward^ ll, 16; abo see Charter of Dartmouth 
Ccrfl^e, Chase, 680^19. (Ahhough the official copy of the charter 
appears in Chase's history, the author cites Farrar in the report of the 
case; the charter also is cited from his book.) 



226 JOHN MARSHALL 

years of age.^ By his will he made his son John his 
successor as President of the College.* This young 
man, then but twenty-five years of age, was a Colond 
of the Revolutionary Army.* He hesitated to accept 
the management of the institution, but the Trustees 
finally prevailed upon him to do so/ The son was as 
strong-willed and energetic as the father, and gave 
himself vigorously to the work to which he had thus 
been called. 

Within four years troubles began to gather about 
the College. They came from sources as strange as 
human nature itself, and mingled at last into a com- 
pound of animosities, prejudices, ambitions, jealous- 
ies, as curious as any aggregation of passions ever 
arranged by the most extravagant novelist. It is 
possible here to mention but briefly only a few of the 
circumstances by which the famous Dartmouth 
quarrel may be traced. A woman, one Rachel Murch, 
complained to the church at Hanover, where Dart- 
mouth College was situated, that a brother of the 
congregation, one Samuel Haze, had said of her, 
among other things, that her ^^ character was • • as 
black as Hell."^ This incident grew into a secta- 
rian warfare that, by the most illogical and human 

1 Chase, 656. * See Whedock's will. tb. 66^ 

* Young Whedock was very active in the Bevolutbn. He was a 
member of the New Hampshiie Assembly in 1775» a Giptain in the 
army in 1T76, a Blajor the following year» toad then Iaeutenant-O>lonel, 
serving on the staff of General J^ratio Gates until called from mil- 
itary service by the death of his father in 1779. (See Smith: Hiitory 
qf Dartmouth CoUege, 76.) 

« Chase, 564. 

» Rachel Murch •*Toy« Session of y« Church of Christ in Hanover" 

April 26, 1786, Shirley: DartnunOh College Caueee and the Supreme 
Court qf the United 8UUe$,e7. 



THE DARTMOUTH COLLEGE CASE 227 

processes, eventuated in arraigning the Congrega- 
tionalists, or ^^established" Church, on one side and 
all other denominations on the other. ^ 

Into this religious quarrel the economic issue en- 
tered, as it always does. The property of ministers 
of the "standing order,*' or "State religion,'* was 
exempt from taxation while that of other preachers 
was not.* Another source of discord arose out of 
the question as to whether the College Professor of 
Theology should preach in the village church. Coin- 
ddent with this grave problem were subsidiary ones 
concerning the attendance of students at village 
worship and the benches th^r were to occupy. The 
fates threw still another ingredient of trouble into 
the cauldron. This was the election in 179S, as one 
of the Trustees, of Nathaniel Niles, whom Je£Ferson, 
with characteristic exuberance of expression, once 
declared to be "the ablest man I ever knew.*** 

Although a lawyer by profession, Niles had taken 
a course in theology when a student, his instructor 
being a Dr. Joseph Bellamy. Both the elder Whee- 
lock and Bellamy had graduated from Yale and had 
indulged in some bitter sectarian quarrels, Bellamy 
as a CongregationaUst and Wheelock as a Presbyte- 
rian. From tutor and parent, Niles and the younger 
Wheelock inherited this religious antagonism. More- 
over, they were as antipatJietic by nature as they 
were bold, uncompromising, and dominant. Niles 
eventually acquired superior influence over his fel- 

» Shirl^r, 6^70. 

* lb. 70-75. Only thiee of the scores of Congregatbnalist ministers 
in New Hampshire were BepubUcans. (16. 70.) 



228 JOHN MARSHALL 

low Trustees, and thereafter no friend of President 
Wheelock was elected to the Board. ^ 

An implacable feud arose. Wheelock asked the 
Legislature to appoint a committee to investigate 
the conduct of the College. This further angered the 
Trustees. By this time the warfare in the^ one col- 
lege in the State had aroused the interest of the 
people of New Hampshire and, indeed, of all New 
England, and they were beginning to take sides. 
This process was hastened by a furious battle of 
\ pamphlets which broke out in 1815. This logomachy 
of vituperation was opened by President Wheelock 
who wrote an unsigned attack upon the Trustees.' 
Another pamphlet followed immediately in support 
of that of Wheelock.* 

The Trustees quickly answered by means of two 
pamphlets.* The Wheelock faction instantly re- 
plied.* With the animosity and diligence of political, 
religious, and personal enemies, the adherents of the 
hostile factions circulated these pamphlets among 
the people, who became greatly excited. On August 
26, 1815, the Trustees removed Wheelock from the 
office of President,* and thereby increased the public 
agitation. Two days after Wheelock's removal, the 

' 1 Shiriey, 81, 84-85. 

^ s SkelohM of ike HiHory qf Dartmouth CoUsge and Moors* CharUy 

School. 

* A Candid, Analytical Rmew qf the Sketches qf the Hititory of Dart' 
movih College. 

^ Vindication qf the Official Conduct of the Tnuteeif etc, and A 
True and Concise Narratiee qf the Origin and Progress qf the Church 
Difficulties, by Benoni Dewey» James Wheelock, and Benjamin J. 
GUbert. 

' Answer to the ^^Vindication!* etc., by Josiah Dunham. 

• Lord: History qf Dartmouth College, 79-77. 



THE DARTMOUTH COLLEGE CASE 229 

Trustees elected as his successor the Reverend Fran- 
cis Brown of Yarmouth, Maine. ^ 

During these years of increasing dissension, po- 
litical parties were gradually drawn into the contro- 
versy; at the climax of it, the Federalists foimd 
themselves supporting the cause of the Trustees and 
the Republicans that of Wheelock. In a general, and 
yet quite definite, way the issue shaped itself into the 
maintenance of chartered rights and the established 
reUgious order, as against reform in college manage- 
ment and equality of religious sects. Into this issue 
was woven a contest over the State Judiciary. The 
Judiciary laws of New Hampshire were confused and 
inadequate and the courts had fallen in dignity. 
During the Republican control of the State, Repub- 
licans had been appointed to aU judicial positions.^ 
When, in 181S, the Federalists recovered suprem- 
acy, they, in turn, enacted a statute, the effect of 
which was the ousting of the Republican judges and 
the appointment of Federalists in their stead. ' The 
Republicans made loud and savage outcry against 
this Federalist " outrage.'' 

Upon questions so absurdly incongruous a po- 
litical campaign raged throughout New Hampshire 

» Lord, 78. 

' In 1811 the salary of Chief Justices of the Court of Common Pleas 
for four of the counties was fixed at 9^00 a year; and that of the other 
Justices of those courts at $180. *' The Chief Justice of said court in 
Grafton County, $180, and the other Justices in that court $160/' 
(Act of June 21, Lawt qf New Hampahire, 1811, 88.) 

' Acts of June 24 and Nov. 5, Latof qf New Hampakire, 1813, 0- 
10; Barstow: Hietory qf New Hampakire, 868-64; Morison: L^e qf 
J^emiak Smitk^ 265-67. This law was, however, most excellent. It 
established a Sujneme Court and systematized the entire judicial 
system. 



i 



2S0 JOHN MABSHALL 

during the autumn and winter of 1815. In March, 
1816, the Republicans elected William Plumer Gov- 
ernor,^ and a Republican majority was sent to the 
Legislature.^ Bills for the reform of the Judiciary ' 
and the management of Dartmouth College ^ were 
introduced. That relating to Dartmouth changed 
the name of the College to "Dartmouth University," 
increased the number of Trustees from twelve to 
twenty-one, provided for a Board of twenty-five 
Overseers with a veto power over acts of the Trus- 
tees, and directed the President of the "University** 
to report annually to the Governor of the State 

^ This was the second time Rumer had been elected Governor. 
Hie was first chosen to that office in 1812. » Plumer had abandoned 
the failing and unpatriotic cause of Federalism in 1808 (Plumer, 365), 
and had since become an ardent follower of Jefferson. 

' The number of votes cast at this election was the largest ever 
polled in the history of the State up to that time. (lb. 432.) 

' See Act of June 27, Laioa of New Hampshire, 1816, 45-48. This 
repealed the Federalist Judiciary Acts of 1813 and revived laws repealed 
by those acts. (See Barstow, 383, and Plumer, 437-38.) 

The burning question of equality of religious taxation was not taken 
up by this Legislature. The bill was introduced in the State Senate by 
the Reverend Daniel Young, a Methodist preacher, but it received 
only three votes. Apparently the reform energy of the Republicans 
was, for that session, exhausted by the Judiciary and College Acts. 
The ** Toleration Act " was not passed until three years later. (McClin- 
tock: History of New Hampshire, 507-29; also Biunstow, 422.) This law 
is omitted from the published acts, although it is indexed. 

^ In his Message to the Legislature recommending reform laws for 
Dartmouth College, Governor Plumer denounced the provision of the 
charter relating to the Trustees as "hostile to the spirit and genius of 
a free government.'* (Barstow, 396.) This message Plumer sent to 
Jefferson, who replied that the idea "that institutions, established for 
the use of the nation, cannot be touched nor modified, even to make 
them answer their end . . is most absurd. . . Yet our lawyers and priests 
generally inculcate this doctrine; and suppose that preceding genera- 
tbns . . had a right to impose laws on us, unalterable by ourselves; • • 
in fine, that the earth belongs to the dead, and not to the living.** 
(Jefferson to Plumer, July 21, 1810, Plumer, 440-41.) 



L 



THE DARTMOUTH COLLEGE CASE 281 

upon the management and conditions of the insti- 
tution. The Governor and Coimcil of State were 
empowered to appoint the Overseers; to fill up the 
existing Board of Trustees to the number of twenty- 
one; and authorized to inspect the "University*' 
and report to the Legislature concerning it at least 
once in every five years. ^ In effect the act annulled 
the charter and brought the College imder the con- 
trol of the Legislature. 

The bitterness occasioned by the passage of this 
legislation was intense. Seventy-five members of the 
House entered upon the Joiunal their formal and 
emphatic protest.* The old Trustees adopted elab- 
orate resolutions, declining to accept the provisions 
of the law and assigning many reasons for their 
action. Among their criticisms of the act, the fact 
that it violated the contract clause of the National 
Constitution was mentioned almost incidentally. Li 
summing up their argument, the Trustees declared 
that "if the act . . has its intended operation and 
effect, every literary institution in the State will 
hereafter hold its rights, privileges and property, 
not according to the settled established principles 
of law, but according to the arbitrary will and plea- 
sure of every successive Legislature." * 

^ Act of June 27, Laws of New Hampahiref 1816, 4S-51 ; and see Lord, 
687-90. 

The temper of the Republicans is illustrated by a joint resolution 
adopted June 29, 1816, denouncing the increase of salaries of Senators 
and Bepresentatives in Congress, which "presents the most inviting 
inducements to avarice and ambition," " will introduce a monopoliz- 
ing power," and "contaminate our elections." (Act of June 27, La%D$ 
cf New Hampshire, 1816, 65-66.) 

' Journal, House of Representatives (N.H.), June 28, 1816,238-41. 

' Resolutions of the Trustees, Lord, 690-94. 



232 JOHN MARSHALL 

. In later resolutions the old Trustees declined to 
accept the provisions of the law, "but do hereby ex- 
pressly refuse to act under the same.'*/ The Gover- 
nor and Council promptly appointed Trustees and 
Overseers of the new University; among the latter 
was Joseph Story. The old Trustees were defiant 
and continued to run the College. When the winter 
session of the Legislature met, Governor Flumer 
sharply denounced their action; ' and two laws were 
passed for the enforcement of the College Acts, the 
second of which provided that any person assuming 
to act as trustee or officer of the College, except 
as provided by law, should be fined $500 for each 
offense.' 

The Trustees of the University " removed " the old 
Trustees of the College and the President, and the 
professors who adhered to them.^ Each side took 
its case to the people.' The new regime ousted 
the old faculty from the College buildings and the 
faculty of the University were installed in them. 
Wheelock was elected President of the State insti- 
tution.* The College faculty procured quarters in 

» Lord,06. 

* *' It is an important question and merits your serious consideration 
whether a law passed and approved by all die constituted authorities 
of the State shall be carried into effect, or whether a few indwidvdU 
not vested with any judicial authority shall be permitted to declare your 
statutes dangerous and arbitrary, unoorutitvtional and void: whether a 
minority of the trustees of a literary institution formed for the educa- 
tion of your children shall be encouraged to inculcate the doctrine 
of resistance to the law and their example tolerated in disseminating 
principles of insubordination and rebellion against government.'' 
(Plumer's Message, Nov. 20, 1816, Lord, lOS.) 

* Acts of Dec. 18 and 26, 1816, Latof qf New Hampskire^ 1816, 74- 
75; see also Lord, 104.) 

* Lord, 111-12. » lb. 112-15. • lb. 115. 



THE DARTMOUTH COLLEGE CASE 28S 

Rowley Hall near by, and there continued their 
work, the students mostly adhering to them.^ 

The College Trustees took great pains to get the 
opinion of the best lawyers throughout New Hamp- 
shire,^ as well as the advice of their immediate coun- 
sel, Jeremiah Mason, Jeremiah Smith, and Daiuel 
Webster, the three ablest members of the New Eng- 
land bar, aU three of them accomplished politicians.' 

William H. Woodward, who for years had been 
Secretary and Treasurer of the College, had in his 
possession the records, account books, and seal. As 
one of the Wheelock faction he declined to recognize 
the College Trustees and acted with the Board of 
the University. The College Trustees removed him 
from his official position on the College Board ;^ and 
on February 8, 1817, brought suit against him in the 
Court of Common Pleas of Grafton Coimty for the J 
recovery of the original charter, the books of record 
and account, and the common seal — aU of the value 

^ Lord, HI. So few students went with the University tliat it dared 
not publish a catalogue. (lb. 129.) 

* Ib.M. 

* One of the many stoiies that sprang up in after years about 
Webster's managem^it of the case is that, since the College was 
founded for the educatbn of Indians and none of them had attended 
for a long time, Webster advised President Brown to procure two or 
three. Brown got a number from Ginada and brought them to the 
river beyond which were the College buildings. While the party were 
rowing across, the young Indians, seeing the walls and fearing that 
th^ were to be put in prison, gave war whoops, sprang into the stream, 
swam to shore and fled. So Webster had to go on without them. (Har- 
vey: Reminiaomoea and Anecdotes qf Danid Webster ^ 111-12.) There 
is not the slightest evidence to support this absurd tale. (Letters to 
the author from Eugene F. Clark, Secretary of Dartmouth College, 
and from Professor John K. Lord, author of History of Dartmouth 
College.) 

« Lord, 09. 



234 JOHN MARSHALL 

of $50,000. By the consent of the parties the case 
was taken directly before the Superior Court of 
Appeals, and was argued upon an agreed state of 
facts returned by the jiury in the form of a special 
verdict.^ 

There were two arguments in the Court of Ap- 
peals, the first during May and the second during 
September, 1817. The court consisted of William 
M. Richardson, Chief Justice, and Samuel Bell and 
Levi Woodbury, Associate Justices, aU Republicans 
appointed by Governor Plumer. 

Mason, Smith, and Webster made imcommonly 
able and learned arguments. The University was 
represented by George Sullivan and Ichabod Bart- 
lett, who, while good lawyers, were no match for the 
legal triumvirate that appeared for the College.* 
The principle upon which Marshall finally overthrew 
the New Hampshire law was given a minor place * 
in the plans as well as in the arguments of Webster, 
Mason, and Smith. 

The Superior Court of Appeals decided against the 
College. The opinion, delivered by Chief Justice 
Richardson, is able and persuasive. ** A corporation, 
aU of whose franchises are exercised for publick pur- 
poses, is a publick corporation '* — a gift to such a 
corporation "is in reality a gift to the publick."* The 

* Farrar, 1. 

' These argum^its are well worth penisaL (See Fanar, 28-206; also 
65 N^. Reports. 47S-624.) 

' For instance. Mason's argument, which is very compact, consists 
of forty-two pages of which only four are devoted to ''the contract 
clause" of the National Constitution and the violation of it by the 
New Hampshire College Act (Farrar, 28-70; 65 NJL 478-502.) 

* Farrar, 212-18; 65 N.H. 628-29. 



THE DARTMOUTH COLLEGE CASE 285 

corporation of Dartmouth College is therefore public. 
" Who has any private interest either in the objects 
or the property of this institution? " If aU its " prop- 
erty . • were destroyed, the loss would be exclusively 
publick." The Trustees, as individuals, would lose 
nothing. "The oflSce of trustee of Dartmouth Col- 
lege is, in fact, a publick trust, as much so as the 
office of governor, or of judge of this court." ^ 

No provision in the State or National Constitu- 
tion prevents the control of the College by the 
Legislature. The Constitutional provisions cited by 
counsel for the College * "were, most manifestly, in- 
tended to protect private rights only." ^ No court 
has ever yet decided that such a charter as that of 
Dartmouth College is in violation of the contract 
clause of the National Constitution, which "was 
obviously intended to protect private rights of prop- 
erty, and embraces all contracts relating to private 
property." This clause "was not intended to limit 
the power of the states" over their officers or "their 
own civil institutions";* otherwise divorce laws 
would be void. So would acts repealing or modify- 
ing laws, under which the judges, sheri£Fs, and other 
officers were appointed. 

Even if the royal charter is a contract, it does not, 
cannot forever, prevent the Legislature from modify- 
ing it for the general good (as, for instance, by in- 
creasing the number of trustees) "however strongly 
the publick interest might require" this to be done. 
"Such a contract, in relation to a publick institution, 

1 Farrar, 214-15; 65 N.H. 680 ' The contract clause. 

> Farrar, 216; 65 N.H. 6S1. « Farrar, 228-29; 65 N.H. 689. 



286 JOHN MABSHALL 

would • . be absurd and repugnant to the principles 
of all government. The king had no power to make 
such a contract/' and neither has the Legislature. 
. If the act of June 27 had provided that "the twenty- 
one trustees should forever have the exclusive con- 
troul of this institution, and that no future legisla- 
ture should add to their number/* it would be as 

■ 

invalid as an act that the "number of judges of this 
court should never be augmented." ^ 

It is against " soimd policy/' Richardson affirmed, 
to place the great institutions of learning "within 
the absolute controul of a few individuals, and out 
of the controul of the sovereign power. . . It is a 
matter of too great moment, too intimately con- 
nected with the publick welfare and prosperity, to 
be thus entrusted in the hands of a few.'* * So the 
New Hampshire court adjudged that the College 
Acts were valid and binding upon the old Trustees 

^ "without acceptance thereof, or assent thereto by 
them." And the court specifically declared that 
such legislation was "not repugnant to the consti- 
tution of the United States." ' ^ 

y Tmme^tely the case was taken to the Supreme 
Court by writ of error, which assigned the violation 
of the National Constitution by the College Acts as 
the groimd of appeal.^ On March 10, 1818, Webster 
opened the argument before a full bench.^ Only a 
few auditors were present, and these were lawyers • 

1 Farrar, «S1; 65 NJS. 641. » Parrar, «82; 65 NJS. 642. 

» Farrar, 235. * J6. 

' Webster was then thirty-six years of age. 
* Groodrich's statement in Brown: Works cf Rttfua Choate: With 
a Memoir qf kia Ufe, i, 515. 



THE DARTMOUTH COLLEGE CASE 237 

who were in Washington to argue other eases.* 
Stirred as New Hampshire and the New England 
States were by the College controversy, the remain- 
der of the country appears to have taken no interest 
in it. Indeed, west and south of the Hudson, the 
people seem to have known nothing of the quarrel. 
The Capital was either ignorant or indifferent. 
Moreover, Webster had not, as yet, made that great 
reputation, in Washington, as a lawyer as well as an 
orator which, later, became his peculiar crown of 
glory. At any rate, the public was not drawn to the 
court-room on that occasion.* 

The argument was one of the shortest ever made 
in a notable case before the Supreme Court during 
the twenty-eight years of its existence up to this 
time. Not three full days were consumed by counsel 
on both sides — a space of time frequently occupied 
by a single speaker in hearings of important causes.' 

In talents, bearing, and preparation the attorneys 

^ They were Rufus Greene Amory and George Black of Boston^ 
David B. Ogden and ''a Mr. Baldwin from New York/' Thomas 
Sergeant and Charles J. Ingersdl of Philadelphia, John Wickham» 
Philip Norbome, Nicholas and Benjamin Watkins Leigh of Virginia* 
and John MePherson Berrien of Georgia. (Webster to Sullivan, 
Feb. «7, 1818, Priv. Cones.: Webster, i, «78.) 

* Brown, i, 515. Story makes no comment on the argmnent of the 
Dartmouth case — a pretty sure sign that it attracted little attention 
in Washington. Contrast Story's silence as to this argument with his 
vivid description of that of M'Culloch vs. Maryland (^ra, chap. vi). 
Goodrich attributes the scant attendance to the fact that the court 
sat ''in a mean apartment of moderate size"; but that circumstance 
did not keep women as well as men from thronging the room- when a 
notable case was to be heard or a celebrated lawyer was to speak. (See 
description of the argument of the case of the Nereid, swpra^ 18S-84.) 

' For example, in M'Culloch ts. Maryland, Luther Martin spoke 
for three days. (Webster to Smith, Feb. 28, 1819, Van Tyne» 80; and 
see tr^ra, chap, vi.) 



238 JOHN MARSHALL 

for the College were as much superior to those for the 
University as, in the Chase impeachment trial, the 
counsel for the defense were stronger than the House 
managers.^ Indeed, the similarity of the arguments 
in the Chase trial and in the Dartmouth case, in re- 
spect to the strength and preparation of opposing 
counsel, is notable; and in both cases the victory 
came to the side having the abler and better-prepared 
advocates. With Webster for the College was Joseph 
Hopkinson of Philadelphia, who had so distinguished 
mmself in the Chase trial exactly thirteen years 
earlier. Hopkinson was now in his forty-ninth year, 
the unrivaled leader of the Philadelphia bar and 
one 6f the most accomplished of American lawyers.^ 
It would seem incredible that sensible men could 
have selected such counsel to argue serious questions 
before any court as those who represented the Uni- 
versity in this vitally important controversy. The 
obvious explanation is that the State officials and the 
University Trustees were so certain of winning that 
they did not consider the employment of powerful 
and expensive attorneys to be necessary.' In fact, 
the belief was general that the contest was practi- 

^ See vol. in, chap, it, of this work. 

* The College Trustees at first thought of employing Luther Mar- 
tin to assist Webster in the Supreme Court (Brown to Kirkland, Not. 
15, 1817, as quoted by Warren in American Law Renew, xlyi, 665). 
It is possible that Hopkinson was chosen instead, upon the advice of 
Webster, who kept himself well informed of the estimate placed by 
Marshall and the Associate Justices on lawyers who appeared b^ore 
them. Marshall liked and admired Hopkinson, had been his personal 
friend for years, and often wrote him. When Peters died in 1828, 
Marshall secured the appointment of Hopkinson in his place. (Mar- 
shall to Hopkinson, March 16, 1827, and same to same [no date, but 
during 1828], Hopkinson MSS.) 

' It was considered to be a ''needless expense'* to send the original 
counsel, Sullivan and Bartlett» to Washington. (Lord, 140.) 



THE DARTMOUTH COLLEGE CASE 239 

cally over and that the appeal of the College to the 
Supreme Court was the pursuit of a feeble and for- 
lorn hope. . 

Even after his powerful and impressive argument 
in the Supreme Court, Webster declared that he had 
never allowed himself "to indulge any great hopes 
of success/* ^ It was not unnatural, tiien, that the 
State and the University should neglect to employ 
adequate counsel. 

John Holmes, a Representative in Congress from 
that part of Massachusetts which afterward became 
the State of Maine, appeared for the University. He 
was notoriously unfitted to argue a legal questioi^ 
of any weight in any court. He was a busy, agile, 
talkative politician of the roustabout, hail-fellow- 
well-met variety, "a power-on-the-stump ** orator, 
gifted with cheap wit and tawdry eloquence.^ 

Associated with Holmes was William Wirt, re- 
cently appointed Attom^-General. At that particu- 
lar time Wirt was all but crushed by overwork, and 
without either leisure or strength to master the case 
and prepare an argument.' Never in Wirt's life did 

» Webster to McGaw, July 27, 1818, Van Tyne, 77. 

' ShM^,2!S&-^2. The fact that Holmes was employed plainly shows 
the mfluenoe of ''practical politics" on the State officials and the 
Trustees of the University. The Board voted December 81, 1817, ''to 
take charge of the case." Benjamin Hale, one of the new Trustees, was 
commissioned to secure other counsel if Holmes did not accept. Ap- 
parenUy Woodward was Holmes's champion: "I have thought him 
extremely ready . . [a] good lawyer, inferior to D. W. only in point of 
oratory." (Woodward to Hall, Jan. 18, 1818, Lord, 189-40.) Hardly 
had Hale reached Washington than he wrote Woodward: "Were you 
•ensiUe of the low ebb of Mr. Holmes* reputation here, you would . . 
be unwilling to trust the cause with him." (Hale to Woodward, Feb. 
1^, 1818, ib. 189.) 

' *It is late at night — the fag-end of a hard day's work. My eyes. 



240 JOHN MARSHALL 

he appear in. any ease so poorly equipped as he was 
in the Dartmouth controversy.^ 

Webster's address was a combination of the argu- 
ments made by Mason and Smith in the New Hamp- 
^ shire court. Although the only question before 
^ the Supreme Court was whether the College Acts 
violated the contract clause of the Constitution, 
Webster gave comparatively scant attention to it; , 
or, perhaps it might be said that most of his argu- 
ment was devoted to laying the foundation for his 
brief reasoning on the main question. Li laying 
this foundation, Webster cleverly brought before 
the contt his version of the history of the College, 
the situation in New Hampshire, the plight of insti- 
tutions like Dartmouth, if the College Acts were 
permitted to stand. 

The facts were, said Webster, that Wheelock had 
founded a private charity; that, to perpetuate this, 
the charter created a corporation by the name of 
"The Trustees of Dartmouth College," with the 
powers, privileges, immunities, and limitations set 
forth in the charter. That instrument provided for 
no public funds, but only for the perpetuation and 

hand and mind all tired. . . I have been up till midnight, at work» 
every night, and still have my hands full. • . I am now worn out . . 
extremely fatigued. . . The Suinreme Court is i^proaching. It will half 
kill you to hear that it will find me unprepared." (Wirt to Carr, 
Jan. 21, 1818, Kennedy, n, 78-74.) Wirt had just become Attorney- 
General. Apparently he found the office in very bad condition. The 
task of putting it in order burdened him. He was compelled to do 
much that was not '*i»operly [his] duty." (lb. 78.) His fee in the 
Dartmouth College case did not exceed $500. (Hale to Humer, Jan. 
1818, Lord, 140.) 

^ *'He seemed to treat this case as if his side could furnish nothing 
but declamation." (Webster to Mason, March 18> 1818, Ptw. Ccr^ 
ret. : Webster, i, 1W5.) 



THE DARTMOUTH COLLEGE CASE 841 

convenient management of the private charity. For 
nearly half a century the College ** thus created had 
existed) uninterruptedly, and usefully/* Then its 
happy and prosperous career was broken by the 
rude and despoiUng hands of the L^^lature of 
the State which the College had so blessed by th6 
education of New Hampshire youth. 
''What has the Legislature done to the College? 
It has created a new corporation and transferred to 
it "all the property^ rightSy powers, liberties and prm- 
leges of the old corporation/' The spirit and the let- 
ter of the charter were wholly changed by the Col- 
lege Acts.^ Moreover, the old Tnhtees "are to be 
punished*^ for not accepting these revolutionary 
laws. A single fact reveals the confiscatory nature 
of these statutes: Under the charter the president, 
professors, and tutors of the College had a right to 
their places and salaries, "subject to the twelve 
trustees alone"; the College Acts change all this and 
make tJbe faculty "accountable to new masters." 

If the Legislature can make such alterations, it 
can abolish the charter "rights and privileges alto- 
gether." In short, if this legislation is sustained, the 
old Trustees "have no rights^ liberties^ franchises^ 
property or privileges^ which the legislature may not 
revoke, annul, alienate or transfer to others when- 
ever it sees fit." Such acts are against "common 
right" as well as violations of the State and National 
Constitutions.^ 
Although, says Webster, nothing is before the court 

1 Earrar, 241; 65 N.H. 596; 4 Wheaton, 534; and see Curtis, i, 
168-66. 
* Farrar, U2r4A; 6$ NJBL 597-08; 4 Wheaton, 556^7. 



242 JOHN MARSHALL 

but the single question of the violation of the Na- 
tional Constitution, he will compare the New Hamp- 
shire laws with "fundamental principles" in order 
that the court may see "" their true nature and char- 
acter." Regardless of written constitutions, "these 
acts are not the exercise of a power properly legis- 
lative." They take away "vested rights"; but this 
involves a "forfeiture . . to . . declare which is the 
proper province of the judiciary." ^ Dartmouth Col- 
lege is not a civil but "an eleemosynary corporation," 
a "private charity"; and, as such, not subject to the 
control of public authorities.^ Does Dartmouth Col- 
lege stand alone in this respect? No! Practically all 
American institutions of learning have been "estab- 
lished . . by incorporating govemours, or trustees. 
. • All such corporations are • • in the strictest legal 
sense a private charity." Even Harvard has not 
"any surer title than Dartmouth College. It may, 
to-day, have more friends; but to-morrow it may 
have more enemies. Its legal rights are the same. So 
also of Yale College; and indeed of all others." • 

From the time of Magna Charta the privilege of 
being a member of such eleemosynary corporations 
"has been the object of l^al protection." To con- 
tend that this privilege may be "taken away," be- 
cause the Trustees derive no "pecuniary benefit" 
from it, is "an extremely narrow view." As well say 
that if the charter had provided that each Trustee 
should be given a "commission on the disbursement 
of the funds," his status and the nature of the cor- 

^ Farrar, 244; 65 N.H. 508-99; 4 Wheaton, 558-^59. 
s Farrar, 248; 65 N.H. 600-01; 4 Wheaton, 563-64. 
> Fanar, 9&^^Q\ 6$ NJB. 605-06; 4 Wheaton, 567-68. 



THE DARTMOUTH COLLEGE CASE 243 

poration would have been changed from public to 
private. Are the rights of the Trustees any the less 
sacred "because they have undertaken to admin- 
ister it [the trust] gratuitously? • • As if the law 
regarded no rights but the rights of money, and of 
visible tangible property!** ^ 

The doctrine that all property "of which the use 
may be beneficial to the publick, belongs therefore 
to the publick/* is without principle or precedent. 
In this very matter of Dartmouth College, Wheelock 
might well have "conveyed his property to trustees, 
for precisely such uses as are described in this char- 
ter** — yet nobody would contend that any Legisla- 
ture could overthrow such a private act. " Who ever 
appointed a legislature to administer his charity? 
Or who ever heard, before, that a gift to a college^ 
or hospital^ or an asylum^ was, in reality, nothing 
but a gift to the state? ** * 

Vermont has given lands to the College; was this 
a gift to New Hampshire? "What hinders Vermont 
. • from resuming her grants,** upon the ground that 
she, equally with New Hampshire, is "the repre- 
sentative of the publick?** In 1794, Vermont had 
"granted to the respective towns in that state, cer- 
tain glebe lands lying within those towns for the sole 
use and support of religious worship.'* Five years 
later, the Legislature of that State repealed this 
grant; "but this coiul declared* that the act of 

» Farrap, 258-59; 65 N.a 607-08; 4 Wheaton. 571-72. 

* Farrar, 260-61; 65 N.H. 609; 4 Wheaton, 571. 

' In Terrett vs. Taylor, 9 Cranch, 45 et seq. Story delivered the 
unanimous opinion of the Supreme Court in this case. This fact was 
well known at the time of the passage of the College Acts; and, in 



244 JOHN MABSHALL 

1794, 'so far as it granted the glebes to the towns, 
covld not afterwards be repealed by the legislature, so 
as to divest the rights of the towns under the grant.*^^ ^ 

So with the Trustees of Dartmouth College. The 
property entrusted to them was "private property *^ 
and the right to "administer the funds, and . . gov- 
ern the college was a franchise and privilege, sol- 
enmly granted to them/' which no Legislature can 
annul. " The use being publick in no way diminishes 
their legal estate in the property, or their title to the 
franchise/* Since " the acts in question violate prop- 
erty, . . take away privileges, immunities, and fran- 
chises, . • deny to the trustees the protection of the 
law,*' and "are retrospective in their operation,'* 
they are, in all respects, "against the constitution 
of New Hampshire/' * 

It will be perceived by now that Webster relied 
chiefly on abstract justice. His main point was that, 
if chartered rights could be interfered with at all, 
such action was inherently beyond the power of the 
Legislature, and belonged exclusively to the Judici- 
ary. In this Webster was rigidly following Smith 
and Mason, neither of whom depended on the viola- 
tion of the contract clause of the National Consti- 
tution any more than did Webster. 

Well did Webster know that the Supreme Court of 
the United States could not consider the violation 
of a State constitution by a State law. He merely 

• , 

view of it, there is difficulty in understanding how ETtpry could have 
been expected to support the New Hampshire legislation. (See 
tr^, 257.) 

1 Farrar, 262; 65 N.H. 60^10; 4 Wheaton» 574-75. 

> Farrar, 278; 66 N.H. 617; 4 Wheaton, 588. 



THE DARTMOUTH COLLEGE CASE 245 

indulged in a device of argument to bring before Mar- 
shall and the Associate Justices those ^'fundamental 
principles/' old as Magna Charta, and embalmed 
in the State Constitution, which protect private 
property from confiscation.^ Toward the dose of his 
argument, Webster discusses the infraction of the 
National Constitution by the New Hampshire Col- 
lie Acts, a violation the charge of which alone gave 
the Supreme Court jurisdiction over the case. 

What, asks Webster, is the meaning of the words, 
^'no state shall pass any • • law impairing the ob- 
ligation of contracts '7 Madison, in the FedercdiM, 
clearly states that such laws ^^'are contrary to the 
^t principles of the social compact, and to every 
principle of sound legislation/ '' But this is not 
enough. "Our own experience," continues Madison, 
"has taught us • • that additional fences'' should 
be erected against spoliations of "personal security 
and private rights/' This was the reason for in- 
serting the contract clause in the National Con- 
stitution — a provision much desired by the "sober 
people of America," who had grown "weary of the 
fluctuating polipy" of the State Governments and 
beheld with anger "that sudden changes, and leg- 
islative interferences in cases affecting personal 
rights, become jobs in the hands of enterprising and 
influential speculators/' These, said Webster, were 
the words of James Madison in Number 44 of the 
Federalist. 

High as such authority is, one still more exalted 
and final has spoken, and upon the precise point 

1 Farrar, 946-47; 65 N£. 598-600; 4 Wheaton, 557-50. 






246 JOHN MARSHALL 

now in controversy. That authority is the Supreme 
Court itself. In Fletcher vs. Peck^ this very tri- 
bunal declared specificaQy that "a grant is a con- 
tract, within the meaning of this provision; and that 
a grant by a state is also a contract, as much as the 
grant of an individual.** * This court went even 
further when, in New Jersey vs. Wilson,' it decided 
that "a grant by a state before the revolution is as 
much to be protected as a grant since.'* * The prin- 
ciple announced in these decisions was not new, 
even in America. Even before Fletcher vs. Peck and 
New Jersey vs. Wilson, this court denied * that a 
Legislature "can repeal statutes creating private 
corporations, or confirming to them property al- 
ready acquired under the faith of previous laws, and 
by such repeal can vest the property of such cor- 
porations exclusively in the state, or dispose of the 
same to such pmposes as they please, without the 
consent or default of the corporators . • ; and we 
think ourselves standing upon the principles of 
natural justice, upon the fundamental laws of every 
free government, upon the spirit and letter of the 
constitution of the United States, and upon the 
decisions of the most respectable judicial tribunals, 
in resisting such a doctrine." • 
From the beginning of our Government until this 

^ See vol. m, chap, x, of this work. 

« Fanar. 27S-74; 65 N.H. 618-19; 4 Wheaton, 591-92. 

* Supra, 223. « Farrar, 275; 65 NJB. 619; 4 Wheaton, 591. 

' In Terrett of . Taylor, see supra, footnote to 243. 

« Fanar, 275; 65 N.H. 619; 4 Wheaton, 591. (Italics the author's.) 
It will be observed that Webster puts the emphasis upon ** natural 
justice" and *' fundamental laws** rather than upon the Constitutional 
point. 



THE DARTMOUTH COLLEGE CASE 447 

very hour, continues Webster, such has been the uni- 
form language of this honorable court. The prin- 
ciple that a Legislature cannot ^^ repeal statutes 
creating private corporations'* must be considered 
as settled. It follows, then, that if a Legislature can- 
not repeal such laws entirely, it cannot repeal them 
in part — cannot " impair them, or essentially alter 
them without the consent of the corporators.** ^ In 
the case last cited * the property granted was land; 
but the Dartmouth charter " is embraced within the 
very terms of that decision,** since "a grant of cor- 
porate powers and privileges is as much a contract as 
a grant of land.** ' 

Even the State court concedes that if Dartmouth 
College is a private corporation, ^^ its rights stand on 
the same ground as those of an individual*'; and 
that tribunal rests its judgment against the College 
on the sole ground that it is a public corporation.^ 

Dartmouth College is not the only institution 
affected by this invasion of chartered rights. "Every 
college, and all the literary institutions of the 
country** are imperiled. All of them exist because 
of "the inviolability of their charters.** Shall their 
fate depend upon "the rise and fall of popular 
parties, and the fluctuations of political opinions'*? 
If so, "colleges and halls will . . become a theatre 
for the contention of politicks. Party and faction 
will be cherished in the places consecrated to piety 
and learning.** 

1 Farrar, 276; 65 N.H. 619-20; 4 Wheaton, 592. 

2 Terrett w. Taylor. » Farrar, 9rn\ 65 N.H. 620; 4 Wheaton, 592. 
^ Farrar, 280; ^ N.H. 622. The two paragraphs containing these 

statements of Webster are omitted in WheakrCs Reports. 



248 JOHN MARSHALL 

"We had hoped, earnestly hoped," exdauned 
Webster, " that the State court would protect Dart- 
mouth College. That hope has failed. It is here, 
that those rights are now to be maintained, or they 
are prostrated forever." He closed with a long Latin 
quotation, not a word of which Marshall understood, 
but which, delivered in Webster's sonorous tones 
and with Webster's histrionic power, must have 
been prodiirious lv impressive. ^ 

Undoubtedly it was at this point that the igcom- 
^^pargble actor, lawyer, and orator added to his pre- 

I pared peroration that dramatic passage which has 
found a permanent place in the literature of emo- 
tional eloquence. Although given to the world a 
quarter of a century after Webster's speech was de- 
livered, and transmitted through two men of vivid 
and creative imaginations, there certainly is some 
foundation for the story. Ruf us Choate in his " Eu- 
logy of Webster," delivered at Dartmouth College in 
1853, told, for the first time, of the incident as nar- 
rated to him by Professor Chauncey A. Goodrich, 
who heard Webster's argument. When Webster had 
apparently finished, says Goodrich, he "stood for 
some moments silent before the Court, while every 
eye was fixed intently upon him." At length, ad- 
dressing the Chief Justice, Webster delivered that 

1 famous perqjation ending: "'Sir, you may destroy 
this little Institution; it is weak; it is in your hands! 
I know it is one of the lesser lights in the literary 
horizon of our country. You may put it out. But 
if you do so, you must carry through your work! 

1 IWiar, 88d-88; 65 HM, 6U; 4 Wheaton, 599. 



r-r 



THE DARTMOUTH COLLEGE CASE 249 

You must extinguish, one after another, all those 
great Ughts of science which, for more than a cen- 
tury, have thrown their radiance over our land ! 

^^^It is, Sir, as I have said, a small College. And 
yet, there are those who love it '*' ^ 

Then, testifies Goodrich, Webster broke down 
with emotion, his lips quivered, his cheeks trembled, 
his ^es filled with tears, his voice choked. In a 
"few broken words of tenderness** he spoke of his 
love for Dartmouth in such fashion that the listeners 
were impressed with "the recollections of father, 
mother, brother, and all the trials and privations 
through which he had made his way into life." ^ 

Goodrich describes the scene in the court-room, 
"during these two or three minutes,** thus: "Chief 
Justice Marshall, with his tall and gaunt figure bent 
over as if to catch the slightest whisper, the deep 
furrows of his cheek expanded with emotion, and 
eyes suffused with tears; Mr. Justice Washington 
at his side, — with his small and emaciated frame, 
and countenance more like marble than I ever saw 
on any other human being, — leaning forward with, 
an eager, troubled look; and the remainder of the 
Court, at the two extremities, pressing, as it were, 
toward a single point, while the audience below 
were wrapping themselves round in closer folds 
beneath the bench to catch each look, and every 
movement of the speaker*s face.** Recovering "his 

^ Brown, i, 516. 

* lb. 519-17. This scene, the movement and color of which grew 
in dignity and vividness through the innumerable repetitions of it* 
caught the popular fancy. Speeches, poems, articles, were written 
about the incident. It became one of the chief sources from which the 
idolaters of Webster drew endless adulation of that great man. 



250 JOHN MARSHALL 

composure) and fixing his keen eye on the Chief 
Justice/* Webster, "in that deep tone with which 
he sometimes thrilled the heart of an audience/' 
exclaimed: 

" * Sir, I know not how others may fed/ (glancing 
at the opponents of the College before him,) *but, 
for myself, wheln I see my Alma Mater surrounded, 
like Caesar in the senate-house, by those who are 
reiterating stab upon stab, I would not, for this 
right hand, have her turn to me, and say, Et tu 
qvxKpiey mi fill r^^ ^ 

Exclusive of his emotional finish, Webster's whole 
address was made up from the arguments of Jeremiah 
Mason and Jeremiah Smith in the State court.' This 
fact Webster privately admitted, although he never 
publicly gave his associates the credit.' 

* See Brown, i, 517; Curtis, i, 169-71. 

Chauncey Allen Goodrich was in his twenty-eighth year whan he 
heard Webster's argument. He was sixty-three when he gave Choate the 
description which the latter made famous in his "Eulogy of Webster." 

* Compare their arguments with Webster's. See Farrar 28-70; 104- 
61; 288-84. 

' "Your notes I found to contain the whole matter. They saved 
me great labor; but that was not the best part of their service; they 
put me in the right path. . . The only new aspect of the argument was 
produced by going intocases to prove these ideas, which indeed lie at the 
very bottom of your argument." (Webster to Smith, March 14, 1818, 
Prio, Correa.: Webster, i, 276-77; and see Webster to Mason, March 
22. 1818. ib, 278.) 

A year later, after the case had been decided, when the question of 
publishing Farrar's Report of all the arguments and opinions in the 
Dartmouth College case was under consideration, Webster wrote 
Mason : "My own interest would be promoted by preventing the Book. 
I shall strut well enough in the Washington Report, & if the 'Book' 
should not be published, the world would not know where I borrowed 
my plumes — But I am still inclined to have the Book — One reason 
is. that you & Judge Smith may have the credit which bdongs to you." 
(Webster to Mason, April 10, 1819, Van Tyne, 80.) 

Farrar's Report was published in August, 1819. It contains the 



THE DARTMOUTH COLLEGE CASE 261 

When Farrar^s " Report," containing Mason's ar- 
gument, was published, Story wrote Mason that, he 
was "exceedingly pleased" with it. "I always had 
a ^esire that the question should be put upon the 
broad basis you have stated; and it was a matter 
of regret that we were so stinted in jurisdiction in 
the Supreme Court, that half the argument could 
not be met and enforced. You need not fear a com- 
parison of your argument with any in our annals." ^ 
Thus Story makes plain, what is apparent on the 
face of his own and Marshall's opinion, that he 
considered the master question involved to be that 
the College Acts were violative of fundamental 
principles of government. Could the Supreme Court 
have passed upon the case without regard to the 
Constitution, there can be no doubt that the de- 
cision would have been against the validity of the 
New Hampshire laws upon the ground on which 
Mason, Smith, and Webster chiefly relied. 

Webster, as we have seen, hjtd little faith in win- 
ning on the contract clause and was nervously 
anxious that the controversy should be presented to 
the Supreme Court by means of a case which would 
give that tribunal greater latitude than was ajfforded 
by the "stinted jurisdiction" of which Story com- 
plained. Indeed, Story openly expressed impatience 
that the court was restricted to a consideration of 
the contract clause^ Upon his return to Massa- 

pleadings and special verdict, the arguments of counsel, opinions, and 
the judgments in the State and National courts, together with valu- 
able appendices. The Farrar Report is indispensable to those who wish 
to understand this celebrated case from the purely legal point of view. 
^ Story to Mason, Oct. 6, 1819, Story, i, S93. 



252 JOHN MARSHALL 

chusetts alter the argument, Story as much as told 
Webster that another suit should be brought which 
could be taken to the Supreme Court, and which 
would permit the court to deal with all the questions 
raised by the New Hampshire College Acts. Web- 
ster's report of this conversation is vital to an under- 
standing of the views of the Chief Justice, as well 
as of those of Story, since the latter undoubtedly 
stated Marshall's views as weU as his own. ^'I saw 
Judge Story as I came along," Webster reported to 
Mason. ""He is evidently expecting a case which 
shall present all the questions. It is not of great 
consequence whether the actions or action, go up at 
this term, except that it would give it an earlier 
standing on the docket next winter. 

^'The question which we must raise in one of 
these actions, is, * whether, by the general principles 
of our governments, the State Legislatures be not 
restrained from divesting vested rights?' This, of 
course, independent of the constitutional provision 
respecting contracts. On this question [the main- 
tenance of vested rights by ** general principles"] I 
have great confidence in a decision on the right side. 
This is the proposition with which you began your 
argument at Exeter, and which I endeavored to 
state from your minutes at Washington. . • On 
general principles, I am very confident the court at 
Washington would be with us.'' ^ 

^ Webster to Mason, April 2S, 1818, Prw. Cones.: Webster, i, 289- 
88. (Italics the author's.) In fact three such suits were brought early 
in 1818 on the ground of diverse citisenship. (Shirley, 1^-8.) Any one 
of them would have enabled the Supreme Court to have passed on 
the ^'general principles" of contract and government. These cases. 



THE DARTMOUTH COLLEGE CASE 25S 

Holmes foDowed Webster- "The God-like Daniel'* 
could not have wished for a more striking contrast 
to himself. In figure, bearing, voice, eye, intellect, 
and personality, the Maine Congressman, politician, 
and stump-speaker, was the antithesis of Webster. 
For three hours Holmes declaimed "the merest stuff 
that was ever uttered in a county court.'* ^ His 
"argument" was a diffuse and florid repetition of 
the opinion of Chief Justice Richardson, and was 
one of those empty and long-winded speeches which 
Marshall particularly disliked. 

Wirt did his best to repair the damage done by 
Holmes; but he was so indifferently prepared,^ and 

had they arrived on time, would have afforded Story his almost foS^ 
tjjfiSiUy desired opportmiity to declare that legislation violative of oon- 
^racts was against ''natural right*' — an opinion h eferven tly desired 
to give. But the wiser Marshall saw in the case, as presented to the 
Supreme Court on the contract guarantee of the Constitution, the 
occasion to declare, in effect, that these same fimdamental principles 
are embraced in the contract clause of the written Constitution of the 
American Nation. 

^ Webster to Mason, March 18, 1818, Prw. Cones. : Webster, i, 275. 

''Every body was grinning at the folly he uttered. Bell could not 
stand it. He seized his hat and went off." (Webster to Smith, March 
14, 1818, i&. 9T7; and see Webster to Brown» March 11, 1818, Van 
Tyne, 75-76.) 

Holmes "has attempted as a politician . . such a desire to be ad- 
mired by eoeryhody^ that he has ceased for weeks to be regarded by 
anybody. . • In the Dartmouth College Cause, he sunk lower at the bar 
than he had in the Hall of Legislating." (Daggett to Mason, March 18, 
1818, Hillard: Memoir and Correspondence of Jeremiah Mason^ 199.) 

The contempt of the legal profession for Holmes is shown by the fact 
that in Farrar's Report but four and one half pages are given to his 
argument, while those of all other counsd for Woodward (Sullivan 
and Bartlett in the State court and Wirt in the Supreme Court) are 
published in full. 

* "He made an apology for himself, that he had not had time to 
study the case, and had hardly thought of it, till it was called on." 
(Webster to Mason, March 18, 1818, Prie. Corres.: Webster, i, 
«75-76.) 



254 JOHN MARSHALL 

so physically exhausted, that, breaking down in the 
midst of his address, he asked the court to adjourn 
that he might finish next day; ^ and this the bored 
and weary Justices were only too willing to do. Wirt 
added nothing to the reasoning and facts of Richard- 
son's opinion which was in the hands of Marshall 
and his associates* 

The argument was closed by Joseph Hopkinson; 
and here again Fate acted as stage manager for Dart- 
mouth, since the author of " Hail Columbia *' * was as 
handsome and impressive a man as Webster, though 
of an exactly opposite type. His face was that of the 
lifelong student, thoughtful and refined. His voice, 
though light, had a golden tone. His manner was 
quiet, yet distinguished. 

Joseph Hopkinson showed breeding in every 
look, movement, word, and intonation.' He had a 
beautiful and highly trained mind, equipped with 
inmiense and acciu*ate knowledge systematically 
arranged.^ It is unfortunate that space does not 
permit even a brief prSds of Hopkinson's admir- 
able argument.^ He quite justified Webster's assm*- 

^ ^'Before he conduded he became so exhausted . . that he was 
obliged to request the Court to indulge him until the next day.'* 
{Boston Daily Advertiser, March 28, 1818.) 

''Wirt . . argues a good cause well. In this case he said more non* 
sensical things than became him." (Webster to Smith, March 14» 
1818, Priv, Corres.: Webster, i, 277.) 

* Hopkinson wrote this anthem when Marshall returned from 
France. (See vol. n, 848, of this work.) 

' This description of Hopkinson is from Philadelphia according to 
traditions gathered by the author. 

^ Choate says that Webster caUed to his aid ''the ripe and beau- 
tiful culture of Hopkinson." (Brown, i, 514.) 

* The same was true of Hopkinson's argument for Chase. (See 
vol. m, chap, iv, of this work.) 



JOSEPH HOPKINSON 



THE DARTMOUTH COLLEGE CASE 255 

ance to Brown that *^Mr. Hopkinson • • will do all 
that man can do." ^ 

At deven o'clock of March 18, 1818, the morning 
after the argument was concluded, Marshall an- 
nounced that some judges were of "different opin- 
ions, and that some judges had not formed opinions; 
consequently, the cause must be continued/* * On 
the foDowing day the court adjourned. 

Marshall, Washington, and Story ' were for the 
College, Duval and Todd were against it, and Liv- 
ingston and Johnson had not made up their minds.^ 
During the year that intervened before the court 
ftgain met in February, 1819, hope sprang up in the 
hearts of Dartmouth's friends, and they became in- 
cessantly active in every legitimate way. Webster's 

1 Webster to Brown, March 11, 1818, Van Tyne, 75-76. 

After Hopkinson's argument Webster wroteBrown : ** Mr. Hopkinson 
understood every part of the cause, and in his argument did it great 
justice.'* (Webster to Brown, March IS, 1818, Prw, Correa. : Web- 
ster, I, 274; and see Webster to Mason, March 18, 1818, ib. 917S-7G.) 

''Mr. Hopkinson closed the cause for the College with great ability, 
and in a manner which gave perfect satisfaction and delight to all who 
heard him." (BoHan Daily Advertiaer, March 28, 1818.) 

It was expected that the combined fees of Webster and Hopkin- 
son would be $1000, ''not an unreasonable compensation." (Marsh 
to Brown, Nov. 22, 1817, Lord, 189.) Hopkinson was paid $500. 
(Brown to Hopkinson, May 4, 1819, Hopkinson MSS.) 

At their first meeting after the decision, the Trustees, "feeling the 
inadequacy " of the fees of all the lawyers for the College, asked Mason, 
Smith, Webster, and Hopkinson to sit for their portraits by Gilbert 
Stuart, the arti^ to be paid by the Trustees. (Shattuck to Hopkinson, 
Jan. 4, 1885, enclosing resolution of the Trustees, April 4, 1819, at- 
tested by Miles Olcott, secretary, Hopkinson MSS.; also, Webster 
to Hopkins<Hi, May 9, 1819, ib.) 

« Webster to Smith, March 14, 1818, Priv. Correa. : Webster, i, 577. 

* Many supposed that Story was undecided, perhaps opposed to 
the College. In fact, he was as decided as Marshall. (See infra, 257- 
58, 275 and footnote.) 

« Webster to Smith, March 14, 1818, Prio. Carres.: Webster, i, 577. 



856 JOHN MARSHALL 

argument was printed and placed in 'the hands of 
all influential lawyers in New England. 

Chancellor James Kent of New York was looked 
upon by the bench and bar of the whole country as 
the most learned of American jiuists and, next to 
Marshall, the ablest.^ The views of no other judge 
were so sought after by his fellow occupants of the 
bench. Judge Charles Marsh of New Hampshire, 
one of the CoUege Trustees and a warm friend of 
Kent, sent him Webster's argument. While on a va- 
cation in Vermont Kent had read the opinion of Chief 
Justice Richardson and, '* on a hasty perusal of it,'' 
was at first inclined to think the College Acts valid, 
because he was ^Ued by the opinion to assume the 
fact that Dartmouth College was a public establish* 
ment for purposes of a general nature." * Webster's 
argument changed Kent's views. 

During the summer of 1818, Justice Johnson, of 
the National Supreme Court, was in Albany, where 
Kent lived, and conferred with the Chancellor about 
the Dartmouth case. Kent told Johnson that he 
thought the New Hampshire College Acts to be 

^ For example, William Wirt, Momx>e'8 Attorney-General, in urging 
the appointment of Kent, partisan Federalist though he was, to the 
Supreme Bench to succeed Justice Livingston, who died March 19, 
1S2S, wrote that ^'Kent holds so lofty a stand everywhere for almost 
matchless intellect and learning, as well as for spotless purity and 
high-minded honor and patriotism, that I firmly believe the nation 
at large would approve and applaud the appointment." (Wirt to 
Monroe, May 5, ISSS, Kennedy, n, 158.) 

* Kent to Marsh, Aug. 26, 1818, Shirley, SOS. Moreover, in 1804, 
Kent, as a member of the New York Council of Bevision, had hdd 
that "charters of incorporation containing grants of personal and 
municipal privileges were not to be essentially affected without the 
consent of the parties concerned." (Record of Board, as quoted in 
ib. «f4.) 



THE DARTMOUTH COLLEGE CASE 257 

against natural right and in violation of the con- 
tract clause of the National Constitution.^ It seems 
fairly certain also that Livingston asked for the 
Chancellor's opinion, and was influenced by it. 

Webster sent Story, with whom he was on terms 
of cordial intimacy, "five copies of our argument/' 
Evidently Webster now knew that Story was un- 
alterably for the CoUege, for he adds these other- 
wise startling sentences: "If you send one of them 
to each of such of the judges as you think proper, you 
will of course do it in the manner least likely to lead 
to a feeling that any indecorum has been committed 
by the plaintiffs." * 

In some way, probably from the fact that Story 
was an intimate friend of Plumer, a rumor had 
spread, before the case was argued, that he was 
against the CoUege Trustees. Doubtless this im- 
pression was strengthened by the fact that Gover- 
nor Plumer had appointed Story one of the Board 
of Overseers of the new University. No shrewder 
politician than Plumer ever was produced by New 
England. But Story declined the appointment.' He 
had been compromised, however, in the eyes of both 
sides. The friends of the CoU^e were discouraged, 
angered, frightened.^ In great apprehension. Judge 

^ Shirley, ^t5S. Shirley ways that Kent ^'agreed to draw up an 
opinion for Johnson in this case." 

< Webster to Story, Sept. 9, 1818, Prw. Corr$9. : Webster, i, 287. 

< Lord, 148. 

* ^'The folks in this region are frightened. . • It is ascertamed that 
Judge Story . • is the ori^oLal framer of the law. • • They suppose that 
on this account the cause is hopeless before the Sup.Ct. of U.S. This 
is, however, report." (Murdock to Brown, Dec. 27, 1817, t&. 142.) 

Murdock mentions Pickering as one of those who believed the 



258 JOHN MARSHALL 

Charles Marsh, one of the CoDege Trustees, wrote 
Hopkmson of Story*s appointment as Overseer of 
the University and of the rumor in circulation. Hop- 
kinson answered heatedly that he would object to 
Story's sitting in the case if the reports could be 
confirmed.^ 

Although the efforts of the College to get its case 
before Kent were praiseworthy rather than repre- 
hensible, and although no smallest item of testimony 
had been adduced by eager searchers for something 
unethical, nevertheless out of the circumstances just 
related has been woven, from the materials of eager 
imaginations, a network of suspicion involving the 
integrity of the Supreme Court in the Dartmouth 
decision,^ 



rumors about Story. This explains much. The soured old 
was an incessant gossip and an indefatigable purveyor of rumors con- 
cerning any one he did not like, provided the reports were bad enough 
for him to repeat. He himself would, with great facility &pply the 
black, if the canvas were capable of receiving it; and he could not for* 
get that Story, when a young man, had been a Republican. 

^ Hopkinson to Marsh, Dec. 81, 1817, Shirley, 274-75. 

* This is principally the work of John M. Shirley in his book Dart' 
mouth College Causes and the Supreme Court of the United States. The 
volume is crammed with the results of extensive research, strange 
conglomeration of facts, suppositions, inferences, and insinuationst 
so inextricably mingled that it is with the utmost difficulty that the 
painstaking student can find his way. 

Shirley leaves the impression that Justices Johnson and Livingston 
were improperly worked upon because they consulted Chancellor 
Kent. Yet the only ground for this is that Judge Marsh sent Web- 
ster's argument to Kent, who was Marsh's intimate friend; and 
that the Reverend Francis Brown, President of Dartmouth, went 
to see Kent, reported that his opinion was favorable to the College, 
and that the effect of this would be good upon Johnson and Liv- 
ingston. 

From the mere rumor, wholly without justification, that Story was 
at first against the College — indeed, had drawn the College Acts (for 
so the rumor grew, as rumors always grow) — Shirley would have us 



THE DARTMOUTH COLLEGE CASE 259 

Meanwhile the news had spread of the humiliating 
failure before the Supreme Court of the flamboy- 
ant Holmes and the tired and exhausted Wirt as 
contrasted with the splendid efforts of Webster and 
Hopkinson. The New Hampshire officials and the 
University at last realized the mistake they had made 
in not employing able counsel, and resolved to rem- 
edy thdr blunder by seeming the acknowledged 
leader of the American bar whose primacy no judge 
or lawyer in the country denied. They did what 
they should have done at the beginning — they re- 
tained William Pinkney of Maryland. 

Traveling with him in the stage during the 
autmnn of 1818, Hopkinson learned that the great 
lawyer had been engaged by the University. More- 
over, with characteristic indiscretion, Pinkney told 
Hopkinson that he intended to request a reargu- 
ment at the approaching session of the Supreme 

believe* without any evidence whatever, that some improper influence 
was exerted over Story. 

Because Webster said that there was something ''left out" of the 
report of his argument, Shirley declares that for a whole hour Webster 
spoke as a Federalist partisan in order to influence MarshalL (Shirley, 
^7,) But such an attempt would have been resented by every Repub- 
lican member of the court and, most of all, by Marshall himself. More- 
over, Marshall needed no such persuasion, nor, indeed, persuasion of 
any kind. His former opinions showed where he stood; so did the 
views which he had openly and constantly avowed since he was a 
member of the Virginia House of Burgesses in 1788. The something 
'*left out*' of Webster's reported argument was, of course, his extempo- 
raneous and emotional peroration , described by Goodrich. 

These are only a very few mslances of Shirley's assmnptions. Yet, 
because of the mass of data his book contains, and because of the im- 
possibility of getting out of them a connected narrative without the 
most laborious and time-consuming examination, together with the 
atmosphere of wrongdoing with which Shirley manages to surround 
the harried reader, his volume has had a strcmg and erroneous effect 
upon general opinion. 



>r 



260 JOHN MAHSHATTi 

Court. In alarm, Hopkinson instantly wrote Web- 
ster,^ who was dismayed by the news. Of all men 
the one Webster did not want to meet in forensic 
combat was the legal Colossus from Baltimore.^ 

Pinkney applied himself to the preparation of the 
case with a diligence and energy uncommon even for 
that most laborious and painstaking of lawyers. Ap« 
parently he had no doubt that the Supreme Court 
would grant his motion for a reargument. It was 
generally believed that some of the Justices had 
not made up their minds; rearguments, under such 
circumstances, were usually granted and sometimes 
required by the court; and William Pinkney was 
the most highly regarded by that tribunal of all 
practitioners before it. So, on February 1, 1819, he 
took the Washington stage at Baltimore, prepared at 
every point for the supreme effort of his brilliant 
career.' 

Finkney's purpose was, of course, well advertised 
by this time. By nobody was it better understood 
than by Marshall and, indeed, by every Justice of 

* Hopkinson to Webeter, Nov. 17, 1818, Priv. Corrta.x Webster, 
1,^288-89. ''Isupposeheexpectstodosomething very extraordinary 
in it, as he says Mr. Wict 'was not strong enough for it, has not back 
enough.'" (76. «80.) 

* Both Hopkinson and Webster resolved to prevent Pinkney from 
mi^ng his anticipated argum^it. (76.) 

' Not only did Pinkney master the law of the case, but, in order to 
have at his command every practical detail of the controversy, he kept 
Cyrus Perkins, who succeeded Woodward, deceased, as Secretary of 
the University Trustees, under continuous examinatbn for an entire 
week. Perkins knew every possible fact about the College controversy 
and submitted to Pinkney the whole history of the diq;>ute and also 
all documents that could illuminate the subject. ''Dr. Perkins had 
been a week at Baltimore, conferring with Mr. Pinkney.'* (Webster to 
Mason, Feb. 4, 1819, Hillard, 218; and see Shiri^, 9M.) 



THE DARTMOUTH COLLEGE CASE 861 

the Supreme Court. All of them, except Duval and 
Todd, had come to an agreement and consented to 
the opinion which Marshall had prepared since the 
adjournment the previous year.^ None of them were 
minded to permit the case to be reopened. Most 
emphatically John Marshall was not. 

When, at eleven o'clock, February 2, 1819, the 
marshal of the court announced *'The Honorable, 
the Chief Justice and the Associate Justices of the 
Supreme Court of the United States,'* Marshall, at 
the head of his robed associates, walked to his place, 
he beheld Pinkney rise, as did all others in the room, 
to greet the court. Well did Marshall know that, at 
the first opportunity, Pinkney would ask for a re- 
argument. 

From all accounts it would appear that Pinkney 
was in the act of addressing the court when the Chief 
Justice, seemingly unaware of his presence, placidly 
announced that the court had come to a decision and 
began reading his momentous opinion.^ After a few 
introductory sentences the Chief Justice came ab- 
ruptly to the main point of the dispute: 

"This court can be insensible neither to the mag- 
nitude nor delicacy of this question. The validity of 
a legislative act is to be examined; and the opinion 

^ This fact was unknown to anybody but the Justices themselves. 
" No public or general opinion seems to be formed of the opinion of any 
particular judge/' (Webster to Brown» Jan. 10, 1819, Priv. Cones. : 
Webster, i, 299.) 

* ''On Tuesday morning, he [Pinkn^] being in court, as soon as the 
judges had taken their seats, the Chi^ Justice said that in vacation 
the judges had formed opinions in the College case. He then imme- 
diately begim reading his opinion, and, of course, nothing was said 
of a second argument." (Webster to Mason, Feb. 4, 1819, Hillard, 
£18.) 



^> 



202 JOHN MARSHALL 

of the highest law tribunal of a state is to be revised: 
an opinion which carries with it intrinsic evidence 
of the diligence, of the ability, and the integrity, 
with which it was formed. On more than one occa- 
sion this court has expressed the cautious circum- 
spection with which it approaches the consideration 
of such questions ; and has declared that, in no doubt- 
ful case would it pronounce a legislative act to be 
contrary to the constitution. 

" But the American people have said, in the consti- 
tution of the United States, that 'no state shall pass 
any bill of attainder, ex post facto law, or law im- 
pairing the obligation of contracts.' In the same 
instrument they have also said, 'that the judicial 
power shall extend to all cases in law and equity aris- 
ing under the constitution.' On the judges of this 
court, then, is imposed the high and solemn duty of 
protecting, from even legislative violation, those 
contracts which the constitution of our country 
has placed beyond legislative control; and, however 
irksome the task may be, this is a duty from which 
we dare not shrink." ^ 

Then MarshaU, with, for him, amazing brevity, 
states the essential provisions of the charter and of 
the State law that modified it;^ and continues, al- 
most curtly: "It can require no argument to prove 
that the circumstances of this case constitute a 
contract." On the faith of the charter " large con- 
tributions" to "a religious and literary institution" 
are conveyed to a corporation created by that char- 
ter. Indeed, in the very application it is stated 

^ 4 Wheaton, 625. • lb. 69^-97. 



^ 



THE DARTMOUTH COLLEGE CASE £88 

that these funds will be so applied. "Surely in this 
transaction every ingredient of a complete and legit- 
imate contract is to be found/* ^ 

This being so, is such a contract "protected'' by 
the Constitution, and do the New Hampshire College 
Acts impair that contract? Marshall states clearly 
and fairly Chief Justice Richardson's argument that 
to construe the contract clause so broadly as to 
cover the Dartmouth charter would prevent legis- 
lative control of pubUc ofBces, and even make di- 
vorce laws invalid; and that the intention of the 
framers of the Constitution was to confine the op- 
eration of the contract clause to the protection of 
property rights, as the history of the times plainly 
shows.* 

All this, says Marshall, "may be admitted/' The 
contract clause "never has been understood to em- 
brace other contracts than those which respect prop- 
erty, or some object of value, and confer rights which 
may be asserted in a court of justice." Divorce laws 
are not included, of course — they merely enable a 
court, " not to impair a marriage contract, but to Ub- 
erate one of the parties because it has been broken 
by the other." 

The "point on which the cause essentially de- 
pends" is "the true construction" of the Dartmouth 
charter. If that instrument grants " poUtical power," 
creates a "civil institution" as an instrument of 
government; "if the funds of the college be pubUc 
property," or if the State Government "be alone in- 
terested in its transactions/' the Legislature may do 

» 4 Wheaton, 627. « lb. 6«7-«8. 



X 



264 JOHN MABSHALL 



what it likes ^^unrestrained'' by the National Con- 
stitution.^ 

If, on the other hand, Dartmouth **be a private 
eleemosynary institution,'' empowered to receive 
property "for objects unconnected with govern- 
ment," and " whose funds are bestowed by individ- 
uals on the faith of the charter; if the donors 
Jiave stipulated for the future disposition and man- 
agement of those funds in the manner prescribed 
by themselves," the case becomes more diflBcult.* 
Marshall then sets out compactly and clearly the 
facts relating to the establishment of Wheelock's 
school; the granting and acceptance of the charter; 
the nature of the College funds which "consisted en- 
tirely of private donations." These facts unques- 
tionably show, he avows, that Dartmouth College 
is "an eleemosynary, and, as far as respects its 
funds, a private corporation." • 

Does the fact that the purpose of the CoII^e is 
the education of youth make it a public corpo- 
ration? It is true that the Grovemment may found 
and control an institution of learning. "But is 
Dartmouth CoUege such an institution? Is educa- 
tion altogether in the hands of government?" Are 
all teachers public officers? Do gifts for the ad- 
vancement of learning "necessarily become public 
property, so far that the will of the legislature, not 
the will of the donor, becomes the law of donation? " ^ 

1 4 Wheaton, 620-^. > lb. 680. 

' lb. 681-84. The statement of facts and of the questions growing 
out of them was by far the best work Marshall did. In these state* 
ments he is as brief, dear, and pointed as, in his arguments, he is pro- 
lix, diffuse, and repetitious. ' lb* 684. 



THE DARTMOUTH COLLEGE CASE «6ff 

Certainly Eleazar Wheelock, teaching and sup- 
porting Indians ^^at his own expense, and on the 
voluntary contributions of the charitable/' was not 
a public officer. The Legislature could not control 
his money and that given by others, merely because 
Wheelock was using it in an educational charity* 
Whence, then, comes ''the idea that Dartmouth 
College has become a public institution? . . Not 
from the source" or application of its funds. ''Is 
it from the act of incorporation?" ^ 

Such is the process by which Marshall reaches 
his famous definition of the word "corporation": 
"A corporation is an artificial being, invisible, ift* 
tangible, and existing only in contemplation of law. 
• • It possesses only those properties which the 
charter of its creation confers upon it. • . Among 
the most important are inmiortality, and . . indi- 
viduality. . • By these means, a perpetual suc- 
cession of individuals are capable of acting for the 
promotion of the particular object, like one Im- 
mortal beings % ^ But « 4 Tt is no more a state fhstru- 
ment than a natural person exercising the same 
powers would be." • 

This, says Marshall, is obviously true of all private 
corporations. "The objects for which a corporation 
IS created are universally such as the government 
wishes to promote*** Why should a private chaiStyi 
incorporated for the purpose of educatfon| be ex- 
cluded from the rules that apply to other corpora- 
tions? An individual who volunteers to teach is not 
a public officer because of his personal devotion to 

» 4 Wheaton, 6S5-86. * lb. eS6. 



< 



266 JOHN MABSHALL 

education; how, then, is it that a corporation formed 
for precisely the same service " should become a part 
of the civil government of the country?'* Because 
the Government has authorized the corporation "to 
take and to hold property in a particular form, and 
for particular purposes, has the Government a con- 
sequent right substantially to change that form, or 
to vary the purposes to which the property is to 
be appKed?" Such an idea is without precedent. 
Can it be supported by reason? ^ 

Any corporation for any purpose is created only 
because it is "deemed beneficial to the country; and 
this benefit constitutes the consideration, and, in 
most cases, the sole consideration for the grant/' This 
is as true of incorporated charities asof any other form 
of incorporation. Of consequence, the Government 
cannot, subsequently, assume a power over such a 
corporation which is "in direct contradiction to its 
[the corporate charter's] express stipulations." So 
the mere fact "that a charter of incorporation has 
been granted" does not justify a « Legislature in 
changing "the character of the institution," or in 
transferring "to the Government any new power 
over it." 

"The character of civil institutions does not grow 
out of their incorporation, but out of the manner in 
which they are formed, and the objects for which they 
are created. The right to change them is not founded 
on their being incorporated, but on their being the 
instruments of government, created for its purposes. 
The same institutions, created for the same objects, 

^ 4 Wheaton, 637. 



THE DABTMOUTH COLLEGE CASE 2«7 

though not incorporated, would be public institutions, 
and, of course, be controllable by the legislature. , 
The incorporating act neither gives nor prevents this 
control. Neither, in reason, can the mcorporating ; 
act change the character of a private eleemosynary 
institution." ^ 

For whose benefit was the property of DartnK>uth 
College given to that institution? For the people at 
large, as counsel insist? Read the charter. Does it 
give the State **any exclusive right to the property 
of the college, any exclusive interest in the labors of 
the professors?" Does it not rather '* merely indi- 
cate a willingness that New Hampshire should enjoy 
those advantages which result to all from the estab- 
lishment of a seminary of learning in the neighbor- 
hood? On this point we think it impossible to enter- 
tain a serious doubt." For the charter shows that, 
while the spread of education and reUgion was the 
object of the founders of the College, the "particular 
interests " of the State " never entered into the minds 
of the donors, never constituted a motive for their 
donation." * 

It is plain, therefore, that every element of the 
problem shows "that Dartmouth College is an 
eleemosynary institution, incorporated for the pur- 
pose of perpetuating . . the bounty of the donors, . 
to the specified objects of that bounty"; that the 
Trustees are legally authorized to perpetuate them- 
selves and that they are "not publicj^ffirerfl " ; that, 
in fine, Dartmouth College is a "seminary of edu- 
cation, incorporated for the preservation of its 

1 4 WheatoD> 688-89. < lb. 689-40 



268 JOHN MARSHALL' 

property, and the perpetual application of that prop- 
erty to the objects of its creation/' ^ 
' There remains a question most doubtful of ^^all 
that have been discussed." Neither those who have 
given money or land to the College, nor students who 
have profited by those benefactions, *^ complain of 
the alteration made in its charter, or think them- 
selves injured by it. The trustees alone complain, 
and the trustees have no beneficial interest to be 
protected/' Can the charter ^^be such a contract as 
the constitution intended to withdraw from the 
power of state legislation?" * 

Wheelock and the other philanthropists who had 
endowed the CoU^e, both before and after the char- 
ter was granted, made their gifts ^^for something 
. . of inestimable value — . . the perpetual applicar 
tion of the fund to its object, in the mode pre- 
scribed by themselves. . . The corporation • • stands 
in their place, and distributes their bounty, as they 
would themselves have distributed it, had they 
been inmiortal." Also the rights of the students 
** collectively" are "to be exercised . . by the cor- 
poration." • 

The British Parliament is omnipotent. Yet had it 
annulled the charter, even inmiediately after it had 
been granted and conveyances made to the corpo- 
ration upon the faith of that charter, "so that the 
living donors would have witnessed the disappoint- 
ment of their hopes, the perfidy of the transaction 
would have been universally acknowledged." Nev- 
ertheless, Parliament would have had the power to 

^ 4 Wheaton, 640-41. * lb. 641. * lb. 642-48. 



THE DARTMOUTH COLLEGE CASE 269 

perpetrate such an outrage. ^^Then, as now, the 
donors would have had no interest m the property; 
• . the students . . no rights to be violated; • • the 
trustees . • no private, individual, beneficial interest 
in the property confided to their protection." But, 
despite the l^al power of Parliament to destroy it, 
** the contract would at that time have been deemed 
sacred by all/* 

"What has since occurred to strip it of its in- 
violability? Circumstances have not changed it. In 
reason, in justice, and in law, it is now what it was 
in 1769." The donors and Trustees, on the one hand, 
and the Crown on the other, were the original par- 
ties to the arrangement stated in the charter, which 
was "plainly a contract" between those parties. To 
the "rights and obligations" of the Crown under 
that contract, "New Hampshire succeeds." ^ Can 
such a contract be impaired by a State Legislature? 

" It is a contract made on a valuable consideration. 

"It is a contract for the security and disposition 
of property. 

"It is a contract, on the faith of which real and 
personal estate has been conveyed to the corporation. 

"It is then a contract within the letter of the 
constitution, and within its spirit also, imless " the 
nature of the trust creates " a particular excepticm, 
taking this case out of the prohibition contained in 
the constitution." 

It is doubtless true that the "preservation of 
rights of this description was not particularly in the 
view of the framers of the constitution when the 

1 4 IVheaton, 648. 



270 JOHN MARSHALL 

clause under consideration was introduced into that 
instrument," and that legislative interferences with 
contractual obligations "of more frequent recur- 
rence, to which the temptation was stronger, and 
of which the mischief was more extensive, consti- 
tuted the great motive for imposing this restriction 
on the state legislatures. 

"But although a particular and a rare case may 
not . . induce a rule, yet it must be governed by the 
rule, when established, unless some plain and strong 
reason for excluding it can be given. It is not enough 
to say that this particular case was not in the mind 
of the convention when the article was framed, nor 
of the American people when it was adopted. It is 
necessary to go farther, and to say that, had this 
particular case been suggested, the language [of the 
contract clause] would have been so varied as to 
exclude it, or it would have been made a special 
exception.'* ^ 

Can the coiurts now make such an exception? " On 
what safe and intelligible ground can this exception 
stand?'' Nothing in the language of the Constitu- 
tion; no "sentiment delivered by its contemporane- 
ous expounders • • justify us in making it." 

Does "the nature and reason of the case itself • . 
sustain a construction of the constitution, not war- 
ranted by its words?" The contract clause was 
made a part of the Nation's fundamental law "to 
give stability to contracts." That clause in its 
"plain import" comprehends Dartmouth's charter. 
Does public policy demand a construction which 

^ 4 Wheaton, 644. 



THE DARTMOUTH COLLEGE CASE 871 

will exclude it? The fate of all similar corporations , 
is involved. "Thelawof thiscaseisthelawof all/'^ 
Is it so necessary that Liegislatures shall "new- 
model'' such charters "that the ordinary rules of ■ 
construction must be disregarded in order to leave/ 
them exposed to legislative alteration? '* — ^ 

The importance attached by the American peo- 
ple to corporate charters like that of Dartmouth 
College is proved by "the interest which this case 
has excited." If the framers of the Constitution 
respected science and literature so highly as to give 
the National Government exclusive power to pro- 
tect inventors and writers by patents and copy^ 
rights, were those statesman "so regardless of con-; 
tracts made for the advancement of literatiu^e as to> 
intend to exclude them from provisions made for, 
the security of ordinary contracts between man. 
and man?" * 

No man ever did or will found a college, " believing 
at the time that an act of incorporation constitutes 
no security for the institution; believing that it is 
inmiediately to be deemed a public institution, 
whose funds are to be governed and applied, not by 
the will of the donor, but by the will of the legisla- 
ture. All such gifts are made in the pleasing, perhaps 
delusive hope, that the charity will flow forever in the 
channel which the givers have marked out for it.** 

Since every man finds evidence of this truth 
**in his own bosom," can it be imagined that 
"the framers of our constitution were strangers" 
to the same universal sentiment? Although "feeling 

^ 4 Wheaton, 645. ' lb. 646-47. 



272 JOHN MARSHALL 

the necessity . . of giving permanence and security 
to contracts," because of the "fluctuating'' course 
and "repeated interferences" of Legislatures which 
resulted in the "most perplexing and injurious em-* 
barrassments/' did the framers of the Constitution 
nevertheless deem it " necessary to leave these con- 
tracts subject to those interferences?" Strong, in- 
deed, must be the motives for making such excep- 
tions.^ 

Finally, Marshall declares that the "opinion of 

the court, after mature deliberation, is, that this is 

I a contract, the obligation of which cannot be im- 

I paired without violating the Constitution of the 

United States." ^ 

Do the New Hampshire Collie Acts impair the 
obligations of Dartmouth's charter? That instru- 
ment gave the Trustees " the whole power of govern- 
ing the coU^e"; stipulated that the corporation 
"should continue forever"; and "that the niunber 
of trustees should forever consist of twelve, and no 
more." This contract was made by the Crown, a 
power which could have made "no violent alteration 
in its essential terms, without impairing its obli- 
gation." 

The powers and duties of the Crown were, by the 
^ Revolution, "devolved on the people of New Hamp- 
shire." It follows that, since the Crown could not 
change the charter of Dartmouth without impair- 
ing the contract, neither can New Hampshire. "All 
contracts, and rights, respecting property, remained 
unchanged by the revolution." • 

^ 4 Wheaton> 647-48. * 76. 650. * lb. 65L 



THE DARTMOUTH COLLEGE CASE 27S 

As to whether the New Hampshire College Acts 
radically alter the charter of Dartmouth College, 
"two opinions cannot be entertained/' The State 
takes over the government of the institution. "The 
will of the state is substituted for the will of the 
donors, in every essential operation of the college. . . 
The charter of 1769 exists no longer" — the College 
has been converted into "a machine entirely sub- 
servient to the will of government," instead of the 
"will of its founders." ^ Therefore, the New Hamp- 
shire College laws " are repugnant to the constitution 
of the United States." * 

On account of the death of Woodward, who had 
been Secretary and Treasurer of the University, and 
formerly held the same offices in the College against 
whom the College Trustees had brought suit, Web- 
ster moved for judgment nunc pro tunc; and judg* 
ment was immediately entered accordingly. 

Not for an instant could Webster restrain the 
expression of his joy. Before leaving the court- 
room he wrote his brother: "All is safe. . . The 
opinion was delivered by the Chief Justice. It was 
very able and very elaborate; it goes the whole 
length, and leaves not an inch of ground for the 
University to stand on." ' He informed President 
Brown that " all is safe and certain. . . I feel a load 
removed from my shoulders much heavier than 
they have been accustomed to bear." * To Mason, 
Webster describes Marshall's manner: "The Chief 

^ 4 Wheaton, 65^-53. ' * lb. 654. 

• Webster "in court" to his brother, Feb. «, 1819, Prw. Cones.: 
Webster, i, 800. 
« Webster to Brown, Feb. 12, 1819, ib. 



\ 
\ 



274 JOHN MARSHALL 

Justice's opinion was in his own peculiar way. He 
reasoned along from step to step; and, not refers 
ring to the cases [cited], adopted the principles of 
them, and worked the whole into a dose, connected, 
and very able argument/' ^ 

At the same time Hopkinson wrote Brown in a vein 
equally exuberant: ^'Our triumph • . has been com* 
plete. Five judges, only six attending, concur not 
only in a decision in our favor, but in placing it upon 
principles broad and deep, and which secure corpora* 
tions of this description from legislative despoti^n 
and party violence for the future. . • I would have an 
inscription over the door of your building, * Founded 
by Eleazar Wheelock, Refounded by Daniel Web- 
ster.'" * The high-tempered Pinkney was vocally 
indignant. "'He talked . • and blustered" imgener- 
ously, wrote Webster, *^ because • . the party was in 
a fever and he must do something for his fees. As he 
could not talk in court, he therefore talked otit of 
court" • 

As we have seen, Marshall had prepared his opin- 
ion under his trees at Richmond and in the moun« 
tains during the vacation of 1818; and he had barely 
time to read it to his associates before the opening 
of court at the session when it was delivered. But 
he afterward submitted the manuscript to Story, 
who made certain changes, although enthusiastically 
praising it. **I am much obliged," writes MarshaU» 

^ Webster to Mason, Feb. 4, 1819, Hillard, 218-14. Webster adds: 
*'Some of the other judges, I am told, have drawn opinions with more 
reference to authorities.*' {lb. 214.) 
> Hopkinson to Brown, Feb. 2, 1819, Prw. Correa.: Webster* I, SOL 
* Webster to Mason* April 1S» 1819, HiUard, iStS. 



THE DARTMOUTH COLLEGE CASE 276 

•*by the alterations you have made in the Dart- 
mouth College ease & am highly gratified by what 
you say respecting it/* ^ 

Story also delivered an opinion upholding the 
charter * — one of his ablest papers. It fairly bristles 
with citations of precedents and historical exam* 
pies. The whole philosophy of corporations is ex- 
pounded with deamess, power, and learning. Appar- 
ently Justice Livingston liked Story's opinion even 
more than that of Marshall. Story had sent it to 
Livingston, who, when returning the manuscript, 
wrote: It ^^has afforded me more pleasure than can 
easily be expressed. It was exactly what I had ex- 
pected from you, and hope it will be adopted with- 
out alteration." • 

At the time of the Dartmouth decision htUe atten- 
tion was paid to it outside of New Hampshire and 

^ Marsliall to Story, May 27, 1819, Proceedings^ Maes. Hist, 8oc. 
dd Series, xiv, S24>25. 

« 4 Wheaton, 666-713. 

' Livingston to Story, Jan. 24, 1819, Story, I, S28. This important 
letter discredits the rumor that Story at first thought the College Acts 
valid. 

Story sent copies of his opinion to eminent men other than his asso- 
ciates on the Supreme Bench, among them William Prescott, the his- 



. torian, than whom no man «r«»«i *ii^n \i^^ in higher eat^m Hv il\\ /\j[ww- (^< 
r «Mmg wh.^ read books. **I have read your opinion with care and great ^ 



pleasurd,^ writes riescott. " In my judgment it is supported by the 
principles of our constitutions, and of all free governments, as well as 
by the authority of adjudged cases. As one of the public, I thank you 
for establishing a doctrine affecting so many valuable rights and inter- 
ests* with such clearness and cog^icy of argument, and weight of au- 
thority asmust in all probability prevent its ever being again disturbed. 
I see nothing I should wish altered in it. I hope it will be adopted with- 
out diminution or subtraction. You have i^aced the subject in some 
strong, and to me, new lights, although I had settled my opinion on 
the general question years ago." (Prescott to Story, Jan. 9, 1819» 
i&.di4.) 



^ 



> 



276 JOHN MABSHALL 

Massachusetts.^ The people, and even the bar, were 
too much occupied with bank troubles, insolvenpy, 
and the swiftly approaching slavery question, to 
bother about a small New Hampshire college. The 
profound effect of Marshall's opinion was first noted 
in the North American Review a year after the Chief 
Justice delivered it. "Perhaps no judicial proceed- 
' ings in this country ever involved more important 
\ consequences, . • than the case of Dartmouth Col- 
lege.'' ^ 

Important, indeed, were the "consequences" of 
the Dartmouth decision. Everywhere corporations 
were springing up in response to the necessity for 
larger and more constant business units and because 
of the convenience and profit of such organizations. 
Marshall's opinion was a tremendous stimulant to 
this natural economic tendenpy. It reassured in- 
vestors in corporate securities and gave confidence 
and steadiness to the business world. It is undeni- 
able and undenied that America could not have been 
developed so rapidly and solidly without the power 
which the law as announced by Marshall gave to 
industrial organization. 

One result of his opinion was, for the period, of 

even higher value than the encouragement it gave 

to private enterprise and the steadiness it brought 

t to business generally; it aligned on the side of 

\ Nationalism all powerful economic forces operat- 

1 ing through corporate organization. A generation 

' passed before railway development began in Amer- 

^ For instance, the watchful Niles does not even mention it in his 
all-seeing and all-recording Register, Also see Warren, 877. 
> North Ammcm Review (18^), x, 88. 



THE DARTMOUTH COLLEGE CASE 277 

ica; but Marshall lived to see the first stage of 
the evolution of that mighty element in American 
commercial, industrial, and social life; and all of 
that force, except the part of it which was directly 
connected with and under the immediate influ- 
ence of the slave power, was aggressively and most 
eflfectively Nationalist. 

That this came to be the fact was due to Mar- 
shall's Dartmouth opinion more than to any other 
single cause. The same was true o% other industrial 
corporate organizations. John Fiske does not greatly 
exaggerate in his assertion that the law as to corpo- 
rate franchises declared by Marshall, in subjecting 
to the National Constitution every charter granted 
by a State "went farther, perhaps, than any other 
in our history toward limiting State sovereignty and 
extending the Federal jurisdiction/* ^ 

Sir Henry Sumner Maine has some groimd for 
his rather dogmatic statement that the principle of 
Marshall's opinion "is the basis of credit of many 
of the great American Railway Incorporations," and 
"has . . secured full play to the economic^ forces 
by which the achievement of cultivating the soil of 
the North American Continent has been performed." 
Marshall's statesmanship is, asserts Maine^ "the 
bulwark of American individualism against demo- 
cratic impatience and Socialistic fantasy." * Such 
views of the Dartmouth decision are remarkably 
similar to those which Story himself expressed soon 
after it was rendered. Writing to Chancellor Kent 

^ Fiske: Essays, Histortcdl and LUerary, i» S79. 
* Maine: Popular Qovemment, 94S. 



278 JOHN MARSHALL 

Story says: "Unless I am very much mistaken the 
principles on which that decision rests will be found 
to apply with an extensive reach to all the great 
concerns of the people, and will check any undue 
encroachments upon civil rights, which the passions 
or the popular doctrines of the day may stimulate 
our State Legislatures to adopt/' ^ 

The court's decision, however, made corporate 
franchises infinitely more valuable and strengthened 
the motives for ^x>curing them, even by corruption. 
In this wise tremendous frauds have been perpe- 
trated upon negligent, careless, and indifferent pub- 
lics; and "enormous and threatening powers,'* selfish 
and non-public in their purposes and methods, have 
been created.* But Marshall's opinion put the public 
on its guard. Almost immediately the States enacted 
laws reserving to the Legislature the right to alter or 
repeal corporate charters; and the constitutions of 
several States now include this limitation on corpo- 
rate franchises. Yet these reservations did not, as 
a practical matter, nullify or overthrow Marshall's 
philosophy of the sacredness of contracts. 

Within the last half -century the tendency has been 
strongly away from the doctrine of the Dartmouth 
decision, and this tendency has steadily become more 
powerful. The necessity of modifying and even ab- 
rogating legislative grants, more freely than is secured 
by the reservation to do so contained in State consti- 
tutions and corporate charters, has further restricted 
the Dartmouth decision. It is this necessity that has 

^ Story to Kent, Aug. 21, 1819, Stoiy, i, SSl. 

* See Cooley : CorutUuHanal Limitations (6th ed.), footaote to 385. 



THE DARTMOUTH COLLEGE CASE «7» 

produced the rapid development of ** that well-known 
but undefined power called the police power," ^ under 
which laws may be passed and executed, in disregard 
of what Marshall would have called contracts, pro- 
vided such laws are necessary for the protection 
or preservation of life, health, property, morals, or 
order. The modem doctrine is that "the Legislature \ 
cannot, by any contract, divest itself of the power to - 
provide for these objects. . . They are to be attained ' 
and provided for by such appropriate means as the 
legislative discretion may devise. That discretion, 
can no more be bargained away than the power 
itself." * 

Aside from the stability which this pronounce- 
ment of the Chief Justice gave to commercial trans- 
actions in general, and the confidence it inspired 
throughout the business world, the largest permanent 
benefit of it to the American people was to teach 
them that faith once plighted, whether in private 
contracts or public grants, must not and cannot be 
broken by State legislation; that, by the funda-* 
mental law which they themselves established for 
their own government, they as political entities 
are forbidden to break their contracts by enacting 
statutes, just as, by the very spirit of the law, pri- 
vate persons are forbidden to break their contracts. 
K it be said that their representatives may betray 
the people, the plain answer is that the people must 
learn to elect honest agents. 

For exactly a century Marshall's Dartmouth opin- 

* Butchers' Uiuoii» etc. w. Crescent City, etc. Ill U.S. 750. 

* Beer Company m. Massachusetts, 97 UJ3. 25; and see Fertilizing 
Co. w. Hyde Park, i&. 659. 



C 



280 JOHN MABSHALL 

/ ion has been assailed and the Supreme Court itself 
has often found ways to avoid its conclusions. But 

V the theory of the Chief Justice has shown amazing 
vitality. Sixty years after Marshall delivered it. Chief 
Justice Waite declared that the principles it an- 
noimced are so ^^ imbedded in the jurisprudence* of 
the United States as to make them to all intents* 

* 

and purposes a part of the Constitution itself.'' ^ 
Thirty-one years after Marshall died. Justice Davis 
.vowed that ". d«j»rtu« from it [MarA,Ul's doc 
trine] now would involve dangers to society that 
cannot be foreseen, would shock the sense of justice 
of the coimtry, unhinge its business interests, and 
weaken, if not destroy, that respect which has al- 
ways been felt for the judicial department of the 
/ Government." • As late as 1895, Justice Brown as- 
■ serted that it has ^^ become firmly established as a 
canon of American jurisprudence." » 

It was a principle which Marshall introduced into 
American Constitutional law, and, fortunately for 
the country, that principle still stands; but to-day 
the courts, when construing a law said to impair the 
obligation of contracts, most properly require that 
it be established that the immistakable purpose of 
the Legislature is to make an actual contract for a 
sufiicient consideration.^ 

1 Stone V9. MLssissippi, October, 1879, 11 Otto (101 U^.) 816. 

* The Binghampton Bridge, December, 1865, $ Wallace, 7S. 

< Pearsall vs. Great Northern Railway, 161 U.S. 660. 

^ More has been written of Marshall's opinion in this case than of 
any other delivered by him except that in Marbuiy w, Madison. 

For recent tliscussions of the subject see Russell: "Status and Ten- 
dencies of the Dartmouth College Case," Am, Law Rev. zxx, d2£-56» 
an able, scholaiiy, and moderate paper; Doe: ''A New View of the 



THE DARTMOUTH COLLEGE CASE 281 

• 

It is highly probable that in the present state 
of the coimtry's development, the Supreme Comt 
would not decide that the contract clause so 
broadly protects corporate franchises as Marshall 
held a century ago. In considering the Dartmouth 
decision, however, the state of things existing when 
it was rendered must be taken into account. It is 
certain that Marshall was right in his interpretation 
of corporation law as it existed in 1819; right in the 
practical result of his opinion in that particular case; 
and, above all, right in the purpose and effect of that 
opinion on the condition and tendency of the coimtry 
at the perilous time it was delivered. 

Dartmouth College Case/' Harvard Law Review^ ti, 161-81, a novel 
and well-reasoned artiderTrickett: ''The Darj^outh College Paralo- 
gism," N ^ M, AmericmuReoieWf xl, 175-87,,ja^gOTotis radical essay; 
Hall: "The Dartmouth College Case," <keen Bag, xx, 244-47, a short 
but brilliant attack upon the assailants of Marshall's opinion; Jen- 
kins: "Should the Dartmouth College Decision be Recalled," Am. 
Law Rev. u, 711-51, a bright, informed, and thorough treatment from 
the extremely liberal point of view. A cahn, balanced, and convin- 
cing review of the effect of the Dartmouth decision on American eco- 
nomic and social life is that of Professor Edward S. Corwin in his 
Marshall and the ConstUuHon, 167-72. When readmg these conunents, 
however, the student should, at the same time, carefully reexamine 
Marshall's opinion. 



•- y 



t 



\ 

^ 



CHAPTEirVI 

VITALIZINa THE CONSTITUTION 

Hie crisis is one which portends destructioo to the liberties of the American 
people. (Spencer Roane.) 

The constitutional government of this r^Hiblioan empire cannot be practicaDj 
enforced but by a fair and liberal interpretation of its powers. 

(William Pinkn^.)H<!. 

The Judiciary of the United States is the subtle corps of sappers and miners 
constantly working under ground to undermine the foundations of our con- 
federated fabric. (Jefferson.) 

The government of the Union is emphatically and truly a government of the 
people. In form and substance it emanates from them. Its powers are granted 
by them, and are to be exercised directly oo them and for their benefit. 

(Marshall.) 

Although it was the third of the great causes to 
be decided by the Supreme Court in the memorable 
yearri819, M'Culloch vs. Maryland was the first in 
importance and in the place it holds in the develop- 
ment of the American Constitution. Furthermore, 
in his opinion in this case John Marshall rose to the 
loftiest heights of judicial statesmanship. If his fame 
rested solely on this one effort, it would be secure. 

To comprehend the full import of Marshall's opin* 
ion in this case, the reader must consider the state of 
the coimtry as described in th^ fourth chapter of this 
volume. While none of his expositions of our funda- 
mental law, delivered in the critical epoch from 1819 
to 1824, can be entirely understood without knowl- 
edge of the National conditions that produced them, 
this fact must be especially borne in mind when re- 
viewing the case of M'Culloch vs. Maryland. 

Like most of the controversies in which Marshall's 
Constitutional opinions were pronounced, M'Culloch 



fbt* TODD 

AtaooUte Jnstlceg Btttlng with Haishill Id the cue of H'Culloch ^nu Mmryluid 



VITALIZING THE CONSTITUTION 88S 

vs. Maryland came before the Supreme Court on 
an agreed case. The facts were that Congress had « 
authorized the incorporation of the second Bank of 
the United States; that this institution had insti- 
tuted a branch at Baltimore; that the Legislature of 
Maryland had passed an act requiring all banks» 
established "without authority from the state," to 
issue notes only on stamped paper and only of cer- 
tain denominations, or, in lieu of these requirements, 
only upon the payment of an annual tax of fifteen 
thousand dollars; that, in violation of this law, the 
Baltimore branch of the National Bank continued 
to issue its notes on unstamped paper without pay- 
ing the tax; and that on May 8, 1818, John James^ 
"Treasurer of the Western Shore," had sued James 
William M'Culloch, the cashier of th^ Baltimore 
branch, for the recovery of the penalties prescribed 
by the Maryland statute.* 

The inmiediate question was whether the Mary- 
land law was Constitutional; but the basic issue 
was the supremacy of the National Government as 
against the dominance of Sta|e Governments. In- 
deed, the decision of this case involved the very 
existence of the Constitution as an "ordinance of 
Nationality," as Marshall so accurately termed it. 

At no time in this notable session of the Supreme 
Court was the basement room, where its sittings 

^ These penalties were forfeits of $500 for every offense — a sum 
that would have aggregated hundreds of thousands, perhaps mil- 
lions of doUarSy in the case of the Baltimore branch, which did an enor* 
mous business. The Maryland law also provided that '* every person 
having any agency in circulating" any such unauthorised note of the 
Bank should be fined (me hundred dollars. (ActofFeb.ll»1818,£<iiof 
rf Maryland, 174.) 



> 



284 JOHN MARSHALL 

were now again held, so thronged with auditors as 
it was when the argument in M^Culloch vs. Mary- 
land took place. " We have had a crowded audience 
of ladies and gentlemen/* writes Story toward the 
close of the nine days of discussion. ^^The hall was 
full almost to suffocation, and many went away 
for want of room."^ 

Webster opened the case for the Bank. His mas- 
terful argument in the Dartmouth College case the 
year before had established his reputation as a great 
Constitutional lawyer as well as an orator of the first 
class. He was attired in the height of fashion, tight 
breeches, blue doth coat, cut away squarely at the 
waist, and adorned with large brass buttons, waist- 
coat exposing a broad expanse of rujBBed shirt with 
high soft collar surrounded by an elaborate black 
stock.* 

The senior counsel for the Bank was William Pink- 
ney. He was dressed with his accustomed foppish 
elegance, and, as usual, was nervous and impatient. 
Notwithstanding his eccentricities, he was Webster*s 
equal, if not his superior, except in physical presence 
and the gift of political management. With Web- 
ster and Pinkney was William Wirt, then Attorney- 
General of the United States, who had arrived at the 
fullness of his powers. 

Maryland was represented by Luther Martin, still 
Attorney-General for that State, then seventy-five 
years old, but a strong lawyer despite his half- 

* Story to White, March 3, 1S19, Story, i, 825. 

' Webster always dressed with extreme care when he expected to 
make a notable speech or argument. For a description of his appear- 
ance on such an occasion see Sargent: PtMic Men and EvmU, i, 172. 



Il 



*• 



VITALIZING THE CONSTITUTION 285 

century, at least, of excessive drinking. By his side 
\ras Joseph Hop^ifison of Philadelphia, now fifty - 
years of age, one of the most learned men at the 
American bar. With Martin and Hopkinson was ^ 
Walter Jones of Washington, who appears to have 
I. een a legal genius, his fame obliterated by devotion 
t3 his profession and unaided by any public service, 
which so greatly helps to give permanency to the 
lawyer^s reputation. All told, the counsel for both 
sides in M*Culloch vs. Maryland were the most emi-j 
nent and distinguished in the Republic. 

Webster said in opening that Hamilton had ^'ex- 
hausted" the arguments for the power of Congress 
to charter a bank and that Hamilton's principles had 
long been acted upon. After thirty years of acquies- 
cence it was too late to deny that the National Legis- 
lature could establish a bank. ^ With meticulous care 
Webster went over Hamilton's reasoning to prove 
that Congress can ^^pass all laws ^necessary and 
proper' to carry into execution powers conferred 
on it." » 

Assuming the law which established the Bank to 
be Constitutional, could Maryland tax a branch of 
that Bank? If the State could tax the Bank at all, 
she could put it out of existence, since a "power to 
tax involves . . a power to destroy" * — words that 
Marshall, in delivering his opinion, repeated as his 
own. The truth was, said Webster, that, in taxing 
the Baltimore branch of the National Bank, Mary- 
land taxed the National Government itself.* 

Joseph Hopkinson, as usual, made a superb argu- 

1 4 Wheaton, S^. * lb. 824. > lb. 827. « 16. 828. 



286 JOHN MARSHALL 

ment — a performance all the more admirable as 
intellectual feat in that, as an Advocate for Manf- 
land, his convictions were opposed to his reasoninli^.^ 
Walter Jones was as thorough as he was lively, byt 
he did little more than to reinforce the well-nigh pei^ 
feet argument of Hopkinson.^ On the same side tUe 
address of Luther Martin deserves notice as the la6 1 
worthy of remark which that great lawyer ever made. 
Old as he was, and wasted as were his astonishing 
powers, his argument was not much inferior to those 
of Webster, Hopkinson, and Pinkney • Martin showed 
by historical evidence that the power now claimed 
for Congress was suspected by the opponents of 
the Constitution, but denied by its supporters and 
called ^^a dream of distempered jealousy/' So came 
the Tenth Amendment; yet, said Martin, now, 
*' we are asked to engraft upon it [the Constitution] 
powers . . which were disclaimed by thenr [the advo- 
cates of the Constitution], and which, if they had 
been fairly avowed at the time, woidd have prevented 
its adoption/* • 

Coidd powers of Congress be inferred as a neces- 
sary means to the desired end? Why, then, did the 
Constitution expressly confer powers which, of ne» 
cessity, must be implied? For instance, the pi;>wer 
to declare war surely implied the power to raise 
armies; and yet that very power was granted in spe- 
cific terms. But the power to create corporations 
^' is not expressly delegated, either as an end or a 
means of national government. *' ^ 

^ 4 Wheaton, 9S0d9eq. * lb. S62 d 9eq. 

» lb. «7»-7S. « lb. 374. 



/ 



VITALIZING THE CONSTITUTION «87 

When Martin finished, William Pinkney, whom 
Marshall declared to be ^^the greatest man he had 
ever seen in a Court of justice," ^ rose to make what 
proved to be the last but one of the great arguments 
of that unrivaled leader of the American bar of his 
period. To reproduce his address is to set out in 
advance the opinion of John Marshall stripped of 
Pinkney's rhetoric which, in that day, was deemed 
to be the perfection of eloquence.' 

For three days Pinkney spoke. Few arguments 
ever made in the Supreme Court affected so pro- 
foundly the members of that tribunal. Story de- 
scribes the argument thus: ^^Mr. Pinkney rose 
on Monday to conclude the argument; he spoke 
all that day and yesterday, and will probably con* 
dude to-day. I never, in my whole life, heard a 
greater speech; it was worth a journey from Salem 
to hear it; his elocution was excessively vehement, but 
his eloquence was overwhelming. His language, his 
style, his figures, his arguments, were most brilliant 
and sparkling. He spoke like a great statesman and 
patriot, and a sound constitutional lawyer. All the 
cobwebs of sophistiy and metaphysics about State 
rights and State sovereignty he brushed away with 
a mighty besom." * 

Indeed, all the lawyers in this n^emorable contest 
appear to have surpassed their previous efforts at 

^ Tyler: Menwir cf Roger Brooke Tcmey, 141. 

* The student should carefully examine Pinkney's argument. Al- 
though the abstract of it given in Wheaton's report is very long, a 
painstaking study of.^it will be hdpful to a better understanding of 
the development of American Constitutional law. (4 Wheaton, 877- 
400.) r^ 

> Story to* White, March 8» 1819» Story, i, 824-25. 

,4 



286 JOHN MARSHALL 

• 

the bar. Marshall, in his opinion, pays this tribute 
to all their addresses: ^^Both in maintaining the af- 
firmative and the negative, a splendor of eloquence, 
and strength of argument seldom, if ever, surpassed, 
have been displayed/* ^ 

After he had spoken, Webster, who at that moment 
was intent on the decision of the Dartmouth CoU^e 
case,^ became impatient. ^' Our Bank argument goes 
on — & threatens to be long,'* he writes Jeremiah 
Mason.' Four days later, while Martin was still 
talking, Webster informs Jeremiah Smith: ^' We are 
not yet thro, the Bank question. Martin has been 
talking 3 ds. Pinkney replies tomorrow & that 
finishes — I set out for home next day." * The ar- 
guments in M'Culloch vs. Maryland occupied nine 
days.* 

Four days before the Bank argument opened in 
the Supreme Court, the House took up the resolu- 
tion offered by James Johnscm of Virginia to repeal 
the Bank's charter.* The debate over this proposal 
continued until February S5, the third day of the 
argument in M'CuUoch vs. Maryland. How, asked 
Johnson, had the Bank fulfilled expectations and 
promises? **What . . is oiu* condition? Surroimded 
by one universal gloom. We are met by the tears 
of the widow and the orphan." ^ Madison has ^^ cast 
a shade" on his reputation by signing the Bank Bill 

^ 4 Wheaton, 4IM. * See supra, chap. v. 

» Webster to Mason, Feb. «4, 1S19, Van T^ne. 78-79. 
« Webster to Smith, Feb. 28, 1819, tb. 79-80. 
' From February 22 to February 27 and from March 1 to Maidi % 
1819. 
• February 18, 1819. See Annah, 15th Cong. 2d Sess. 1240. 
' lb. 1242. 



VITALIZING THE CONSTITUTION «89 

^— that " act of usurpation/' Under the common law 
the charter " is forfeited." ^ 

The Bank is a "mighty corporation/* created "to 
overawe . • the local institutions, that had dealt them- 
selves almost out of breath in supporting the Govern- 
ment in times of peril and adversity." The financial 
part of the Virginia Republican Party organization 
thus spoke through James Pindall of that State. ^ 

William Lowndes of South Carolina brilliantly 
defended the Bank, but admitted that its "early 
operation" had been "injudicious." « John Tyler of 
Virginia assailed the Bank with notable force. " This 
charter has been violated," he said; "if subjected 
to investigation before a court of justice, it will be de- 
clared null and void." * David Walker of Kentucky 
declared that the Bank "is an engine of favoritism 
— of stock jobbing" — a machine for "binding in 
adamantine chains the blessed, innocent lambs of 
America to accursed, corrupt European tigers." ^ 
In spite of all this eloquence, Johnson's resolution 
was defeated, and the fate of the Bank left in the 
hands of the Supreme Court. 

On March 6, 1819, before a few spectators, mostly 
lawyers with business before the court, Marshall f 
read his opinion. It is the misf ortime of the biogra- 
pher that only an abstract can be given of this 
epochal state paper — among the very first of the 
greatest judicial utterances of all time.® It was de- 

^ Annals, 15th Cong, id Seas. 1249-50. ^ lb. 1254. 

» lb. 12S6. * J6. 1311. » lb. 1404-06. 

* '* Marshall's opinion in M'Culloch vs. Maryland, is perhaps the 
most celebrated Judicial utterance in the annab of the English speak- 
ing world." (Oreat American Lawyers: Lewis, n, 968.) 



I' 



290 JOHN MABSHALL 

livered only three days after Pinkney concluded his 
superb address. 

Since it is one of the longest of Marshall's opinions 
fi^d, by general agreement, is considered to be his 
ablest and most carefully prepared exposition of the 
Constitution, it seems not unlikely that much of it 
had been written before the argument. The court 
was very busy every day of the session and there 
was little, if any, time for Marshall to write this 
elaborate document. The suit against M'Culloch 
had been brought nearly a year before the Supreme 
Court convened; Marshall undoubtedly learned of 
it through the newspapers; he was intimately fami- 
liar with the basic issue presented by the litigation; 
and he had ample time to formulate and even to 
write out his views before the ensuing session of the 
court. He had, in the opinions of Hamilton and Jef- 
ferson,^ the reasoning on both sides of this funda- 
mental controvers^r. It appears to be reasonably 
probable that at least the framework of the opinion 
in M'CuUoch vs. Maryland was prepared by Mar- 
shall when in Richmond during the smnmer, autiunn» 
and winter of 1818-19. 

The opening^words of Marshall are majestic: "A 
sovereign state denies the obligation- olajp^w . . of 
the Uiupn. . . The constitution of oiu* country, in its: 
most . . vital parts, is to be considered; the conflict-' 
ing powers of the government of the Union and of its 

^ As the biographer of Washington, Marshall had carefully read 
both Hamilton's and Jefferson's Cabinet opinions on the constitu- 
tionahty of a National bank. Compare Hunilton's argument (vol. 
n, 7^74, of this work) with Marahairs opinion in M'Culloch fia 
Maryland. 



. ~ t. r-* 



VITALIZING THE CONSTITUTION 291 

members, • . are to be discussed; and an opinion given, 
which may essentially influence the great operations 
of the government/*^ He cannot "approach such 
a question without a deep sense of . . the awful re- 
sponsibility involved in its decision. But it must 
be decided peacefully, or remain a source of hostile ^ 
legislation, perhaps of hostility of a slUl more serious 
nature.'^ ^ In these solemn words the Chief Justice 
reveals the f atefid issue which M'CuUoch vs. Mary- 
land foreboded. 

That Congress has power to charter a bank is 
not "an open question. . . The principle . . was in-- 
troduced at a very early period of our history, has 
been recognized by many successive legislatures, 
and has been acted upon by the judicial department 
• • as a law of undoubted obligation. • . An exposi- 
tion of the constitution, deliberately established by 
legislative acts, on the faith of which an immense 
property has been advanced, ought not to be lightly 
disregarded." 

The first Congress passed the act to incorporate a 
National bank. The whole subject was at the time ^ 
debated exhaustively. "The bill for incorpiorating 
the bank of the United States did not steal upon an 
unsuspecting legislatiure, & pass imobserved," says 
Marshall. Moreover, it had been carefully examined 
with "persevering talent" in Washington's Cabinet. 
When that act expired, " a short experience of the em- 
barrassments " suffered by the coimtry " induced the 
passage of the present law." He must be intrepid, 
indeed, who asserts that "a measure adopted imder 

1 4 TVheaton, 400. * lb. (Italics the author's.) 



292 JOHN MARSHALL 

these circumstances was a bold and plain usurpation, 
to which the constitution gave no countenance." ^ 
But Marshall examines the question as though it 
were "entirely new"; and gives an historical account 
of the Constitution which, for clearness and brevity, 
never has been surpassed.^ Thus he proves that 
"the government proceeds directly from the people; 
. . their act was final. It required not the aflSrm- 
ance, and coidd not be negatived, by the state gov- 
ernments. The constitution when thus adopted . . 
• boimd the state sovereignties." The States could 
and did establish " a league, such as was the conf ed- 

1 4 Wheaton, 40(M)«. 

^ ''In discussing this question, the counsel for the state of Mary« 
land have deemed it of some importance, in the construction of the 
constitution, to consider that instrument not as emanating from the 
people, but as the act of sovereign and independent states. The 
powers of the general government, it has been said, are delegated by 
the states, who alone are truly sovereign; and must be exercised in 
subordination to the states, who alone possess supreme dominion. 

''It would be difficult to sustain this proposition. The convention 
which framed the constitution was indeed elected by the state legis- 
latures. But the instrument, when it came from their hands, was a 
mere proposal, without obligation, or pretensions to it. It was re- 
ported to the then existing Congress of the United States, with a 
request that it might ' be submitted to a convention of delegates, diosen 
in each slate, by the people thereof, under the reconmiendation of its 
legislature, for their assent and ratification.' This mode of proceeding 
was adopted; and by the convention, by Congress, and by the state 
legislatures, the instrument was submitted to the people. 

" They acted upon it in the only manner in which they can act safdy, 
effectively, and wisely, on such a subject, by assembling in convention. 
It is true, they assembled in their several states — and where else 
should they have assembled? No political dreamer was ever wild 
enough to think of breaking down the lines which separate the states, 
and of compounding the American people into one common mass. Of 
consequence, when they act, they act in their states. But the measures 
they adopt do not, on that account, cease to be the measiu*es of the 
people themselves, or become the measures of the state governments. 
From these conventions the constitution derives its whole authority.". 
(4 Wheaton, 40^-08.) 



VITALIZING THE CONSTITUTION 293 

eration. . • But when, 'in order to form a more per- 
fect imion/ it was deemed necessary to change this 
alliance into an eflfective government, . . acting di- 
rectly on the people,'' it was the people themselves 
who acted and established a fundamental law for 
their government.* 

The Government of the American Nation is, then, 
"emphatically, and truly, a government of the 
people. In form and in substance it emanates from 
them. Its powers are granted by them, and are to be 
exercised directly on them, and for their benefit'* ^ 
— a statement, the grandeur of which was to be en- . 
hanced forty-four years later, when, standing on the 
battle-field of Gettysburg, Abraham Lincoln said 
that " a government of the people, by the people, for 
the people, shall not perish from the earth." ' 

To be sure, the States, as well as the Nation, have 
certain powers, and therefore "the supremacy of 
their respective laws, when they are in opposition, 
must be settled." Marshall proceeds to settle that 
basic question. The National Government, he begins, 
"is supreme within its sphere of action. This would 

1 4 Wheaton, 4(»-04. * lb. 405. 

' The Nationalist ideas of Marshall and Lincoln are identical; and 
their language is so similar that it seems not unlikely that Lincoln para- 
phrased this noble passage of Marshall and thus made it immortal. 
This probability is increased by the fact that Lincoln was a profound 
student of Manhall's O>nstitutional opinions and conunitted a great 
many of them to memoiy. 

The famous sentence of Lincoln's Gettysburg Address was, how- 
ever, almost exactly given by Webster in his Heply to Hayne: "It 
is . . the people's Grovemment; made for the people; made by the 
people; and answerable to the people." {Debates, 21st 0>ng. 1st Sess. 
74; also Curtis, i, 355-61.) But both Lincoln and Webster merely 
stated in condensed and simpler form Marshall's immortal utterance 
in M'Culloch t». Maryland. (See also wfrOi chap, x.) 



'% 



\ 



S94 JOHN MARSHALL 

seem to result necessarily from its nature/' For **it 
is the government of all; its powers are delegated by 
all; it represents all, and acts for all. Though any 
one state may be willing to control its operations, 
no state is willing to allow others to control them. 
The nation, on those subjects on which it can act, 
must necessarily bind its component parts." Plain 
as this truth is, the people have not left the demon- 
stration of it to "mere reason" — for they have, "in 
express terms, decided it by saying" that the Con- 
stitution, and the laws of the United States whidi 
shall be made in pursuance thereof, "shall be the su- 
preme law of the land, " and by requiring all State 
oflScers and legislators to "take the oath of fidelity 
to it." 1 

The fact that the powers of the National Govern- 
ment enumerated in the Constitution do not include 
that of creating corporations does not prevent Con- 
gress from doing so. "There is no phrase in the in- 
strument which, like the articles of confederation, 
excludes incidental or implied powers; and which re- 

; quires that everything granted shall be expressly 
and minutely described. . . A constitution, to con- 
tain an accurate detail of all the subdivisions of 
which its great powers will admit, and of all the 
means by which they may be carried into execution, 
would partake of a prolixity of a legal code, and 
could scarcely be embraced by the human mind. 
It would probably never be understood by the 
public." 

^ The very "nature" of a constitution, "therefore, 

\ » 4 Wheaton, 40 W)6. 



k 



VITALIZmG THE CONSTITUTION 295 

requires, that only its great outlines should be f 
marked, its important objects designated, and the 
minor ingredients which compose those objects be 
deduced from the nature of the objects themselves.*' In 
deciding such questions "we must never forget,'* 
reiterates Marshall, "'that it is a, constitution we are 
expounding." ^ 

This being true, the power of Congress to establish 
a bank is undeniable — it flows from "the great 
powers to lay and collect taxes; to borrow money ; to 
r^ulate conmierce; to declare and conduct a war; 
and to raise and support armies and navies." Con^ 
aider, he continues, the scope of the duties of the Na- 
tional Government: "The sword and the pur^, all 
the external relations, and no inconsiderate portion 
of the industry of the natidnTlSe^'entru^ted t6"*its 
government. . . A government, entrusted with such 
ample powers, on the due execution of which the 
happiness and prosperity of the nation so vitally de- 
pends, must also be entrusted with ample means for 
their execution. The power being given, it is the 
interest of the nation to facilitate its execution. It 
can never be their interest, and cannot be presiuned 
to have been their intention, to dog and embarrass 
its execution by withholding the most appropriate 
means^" « 

At this point Marshall's language becomes as 
exalted as that of the prophets: "Throughout this 
vast republic, from the St. Croix to the Gulf of 
Mexico, from the Atlantic to the Pacific, revenue 
is to be collected and eiq>ended, armies are to be 

1 4 Wheaton, 400-07. (Italics the author's.) * Ib.y 407-08. 



H 



<r 



',• 



296 JOHN MAP 

marched and supported- 'I he *. 'jencies of the 
nation may require th*^ * tieii ure raised in the 
north should be trans^^ *i ed to the south, that 
raised in the east conveyed « j thg. west, or that this 

order should be reversed/' 73^^ Marshall the 
soldier is speaking. There is m his words the blast 
of the bugle of Valley Forge. Indeed, the pen with 
which Marshall wrote M^Culloch vs. Maryland was 
fashioned in the army of the Revolution.^ 

The Chief Justice continues: "Is that construc- 
tion of the constitution to be preferred which would 
render these operations difficult, hazardous, and ex- 
pensive? " Did the f ramers of the Constitution " when 
granting these powers for the public good'* intend 
to impede "their exercise by withholding a choice 
of means?*' No! The Constitution "does not pro- 
fess to eniunerate the means by which the powers 
it confers may be executed; nor does it prohibit 
the creation of a corporation, if the existence of 
such a being be essential to the beneficial exercise 
of those powers." ^ 

Resorting to his favorite method in argument, 
that of repetition, Marshall again asserts that the 
fact that "the power of creating a corporation is one 
appertaining to sovereignty and is not expressly con- 
ferred on Congress," does not take that power from 
Congress. If it does, Congress, by the same reason- 
ing, would be denied the power to pass most laws; 
since "all legislative powers appertain to sover- 
eignty/' They who say that Congress may not 
select "any appropriate means" to carry out its 

^ See vol. I, 72, of this work. * 4 Wheaton, 408-09. 



VITALIZING THE CONSTITUTION 297 

admitted powers, " take upon themselves the burden 
of establishing that exception/' ^ 

The establishment of the National Bank was a 
means to an end; the power to incorporate it is 
"as incidental" to the great, substantive, jand inde- 
pendent powers expressly conferred on Congress 
as that of making war, levying taxes, or regulating 
commerce.^ This is not only the plain conclusion 
of reason, but the dear language of the Constitution 
itself as expressed in the "necessary and proper" 
clause' of that instrument. Marshall treats with 
something like contempt the argiunent that this 
clause does not mean what it says, but is "really 
restrictive of the general jight,.jvhich might other- 
wise be implied, of selecting means for executing 
the eniunerated powers" — a denial, in short, that, 
without this clause. Congress is authorized to make 
laws.* After conferring on Congress all legislative 
power, "after allowing each house to prescribe its 
own course of proceeding, after describing the man- 
ner in which a bill should become a law, would it 
have entered into the mind . . of the convention 
that an express power to make laws was necessary 
to enable the legislature to make them?" ^ 

In answering the old Jeffersonian argument that,^ 
imder the "necessary and proper" clause. Congress ,^ 
can adopt only those means absolutely "necessary" ^ 

1 4 Wheaton, 409-10. « tb. 411. 

* ''The 0>ngress shall have Power . . to make all Laws which shall 
be necessary and proper for carrymg into Execution the foregoing 
Powers, and all other Powers vested by this 0>nstitution in the (jovem- 
ment of the United States, or in any Department or Officer thereof.'! 
(Constitution of the United States, Article i, Section 8.) 
J 4 Wheaton, 41«. » lb. 413. • See voL u, 71, of this work. 



298 JOHN MARSHALL 

to the execution of express powers, Marshall de- 
votes an amount of space which now seems ex- 
travagant. But in 1819 the question was unsettkd 
and acute; indeed, the Republicans had again made 
it a political issue. The Chief Justice repeats the 
arguments made by Hamilton in his opinion to 
Washington on the first Bank Bill.^ 

Some words have various shades of meaning, of 
which courts must select that justified by ** common 
usage/' "The word * necessary' is of this descrip- 
tion. . . It admits of all degrees of comparison. . . 
A thing may be necessary, very necessary, abso- 
lutely or indispensably necessary.'' For instance, 
the Constitution itself prohibits a State from " laying 
^imposts or duties on imports or exports, except 
what may be absolutely necessary for executing its 
inspection laws'"; whereas it authorizes Congress 
to " * make all laws which shall be necessary and 
proper'" for the execution of powers expressly 
conferred.^ 

I Did the f ramers of the Constitution intend to f or- 
/bid Congress to employ ^^any^^ means "which might 
/ be appropriate, and which were conducive to the 
/ end"? Most assuredly not! "The subject is the 
execution of those great powers on which the welfare 
of a nation essentially dei)ends." The "necessary 
and proper" clause is found "in a constitution in- 
tended to endure for ages to come, and, conse- 
quently, to be adapted to the various crises of hu- 
man affairs. . . To have declared that the best means 
shall not be used, but those alone without which 

1 Vol. n» 7ie-74« of thb work. < 4 Wheatcm, 414. 






VITALIZING THE CONSTITUTION 299 

the power given would be nugatory, would have 
been to deprive the legislature of the capacity to 
avail itself of esperience, to exercise its reason, and 
to accommodate its legislation to circimistances.'' ^ 

']^e_^ntrary conclusion is tinged with "insan- 
ity/' Whence comes the power of Congress to 
prescribe pimishment for violations of National 
laws? No such general power is expressly given by 
the Constitution. Yet nobody denies that Congress 
has this general power, although "it is expressly 
given in some cases,'^ such as counterfeiting, piracy, 
and "offenses against the law of nations/* Never- 
theless, the specific authorization to provide for the 
punishment of these crimes does not prevent Con- 
gress from doing the same as to crimes not specified.* 

Now comes an example of Marshall's reasoning 
when at his best — and briefest. 

"Take, for example, the power *to establish post- 
offices and post-roads.' This power is executed by 
the single act of making the establishment. But, 
from this has been inferred the power and duty of 
carrying the mail along the post-road, from one 
post-office to another. And, from this implied 
j)ower, has again been inferred the right to punish 
those who steal letters from the post-office, or rob . 
the mail. It may be said, with some plausibility, 1 
that the right to carry the mail, and to pimish those 
who rob it, is not indispensably necessary to the 
establishment of a post-office and post-road. This 
right is indeed essential to the beneficial exercise of 
the power, but not indispensably necessary to its 

1 4 Wheaton, 415. * lb. 410-17. 



SOO JOHN MARSHALL 

existence. So, of the punishment of the crimes of 
stealing or falsifying a record or process of a court ' 
of the United States, or of perjury in such court. 
To punish these offenses is certainly conducive to 
the due administration of justice. But courts may 
exist, and may decide the causes brought before 
them, though such crimes escape punishment. 

"The baneful influence of this narrow construc- 
tion on all the operations of the government, and 
the absolute impracticability of maintaining it 
without rendering the government incompetent to 
its great objects, might be illustrated by numerous 
examples drawn from the constitution, and from 
our laws. The good sense of the public has pro- 
nounced, without hesitation, that the power of 
punishment appertains to sovereignty, and may be 
exercised whenever the sovereign has a right to act, 
as incidental to his constitutional powers. It is a 
means for carrying into execution all sovereign 
powers, and may be used, although not indispen- 
sably necessary. It is a right incidental to the power, 
and conducive to its beneficial exercise." ^ 

To attempt to prove that Congress might execute 

its powers without the use of other means than 

those absolutely necessary would be "to waste time 

and argmnent,'* and "not much less idle than to 

^ hold a lighted taper to the sun." It is idle to specu- 

, late upon imaginary reasons for the "necessary and 

proper" clause, since its purpose is obvious. It "is 

placed among the powers of Congress, not among 

Ithe limitations on those powers. Its terms purport 

.» 4 Wheaton. 417-18. 



VITALIZING THE CONSTITUTION 301 

to enlarge, not to diminish the powers vested in the 
government, . . If no other motive for its insertion 
can be suggested, a sufQcient one is found in the 
desire to remove all doubts respecting the right to 
legislate on the vast mass of incidental powers which 
must be involved in the constitution, if that instru- 
ment be not a splendid bauble." ^ 

Marshall thus reaches the conclusion that Con-l ^ 
gress may "perform the high duties assigned to it,V 
in the manner most beneficial to the people/' Then 
comes that celebrated passage — one of the most 
famous ever delivered by a jurist : " Let the end be I / 
legitimate, let it be within the scopsi3liii^ccuu3i&^ ' 
tion, and air means which a^ appropriate, which gire 
plainly adapted to that end; which are not prohib- 
ited, but consist with the letter and. spirit of the 
constitution, are constitutional." * 

Further on the Chief Justice restates this fun- 
damental principle, without which the Constitution 
would be a lifeless thing: "Where the law is not 
prohibited, and is really calculated to effect any of 
the objects entrusted to the government, to under- 
take here to inquire into the degree of its neces- 
sity, would be to pass the line which circumscribes ; 
the judicial department, and to tread on legislative ' 
ground. The court disclaims all pretensions to such 
a power." * 

The fact that there were State banks with whose 
business the National Bank might interfere, had 
nothing to do with the question of the power 
of Congress to establish the latter. The National 

^ 4 Wheaton, 410-91. * lb. 4£1. > lb. 428. 



^ 



I 



^ 



k 



\ 



802 



JOHNMABSHALL 



Government does not depend on State Governments 
"for the execution of the great powers assigned to it. 
Its means are adequate to its ends/' It can choose a 
National bank rather than State banks as an agen^r 
for the transaction of its business; "and Congress 
alone can make the election." 

It is, then, "the unanimous and decided opinion" 
of the court that the Bank Act is Constitutional. So 
is the establishment of the branches of the parent 
bank. Can States tax these branches, as Maryland 
has tried to do? Of course the power of taxation "is 
retained by the states/' and "is not abridged by 
the grant of a similar power to the government of 
the Union." These are "truth's which have nevCT 
been denied." ^ 

With sublim e % audacity Marshall then declares 
that "such is the paramount character of the con- 
stitution that its capacity to withdraw any subject 
from the action of even this power, is admitted." ^ 
This assertion fairly overwhelms th* student, since 
the States then attempting to tax out of existence 
the branches of the National Bank did not admits 
but emphatically denied, that the National Govern- 
ment could withdraw^f rom State taxation any tax- 
able subject. whatever, except that whicK the Con- 
stitution itself specifically withdraws. 

"The States," argues Marshall, "are expressly 
forbidden" to tax imports and exports. This being 
so, "the same paramount character would seem to 
restrain, as it certainly may restrain, a state from 
such other exercise of this [taxing] power, as is in 

1 4 Wheaton» 4d4-£5. 



VITALIZING THE CONSTITUTION 808 

its nature incompatible with, and repugnant to, the 
constitutional laws of the Union. A law, absoluteljL^ 
repugnant to another, as entirely repeals that other 
as if express terms of repeal were used/' 

In this fashion Marshall holds, in effect, that 
Congress can restrain the States from taxing certain 
subjects not mentioned in the Constitution as fully 
as though those subjects were expressly named. 

It is on this ground that the National Bank claims 
exemption '^froni the power of a state to tax its 
operations." Marshall concedes that ^' there is no 
express provision [in the Constitution] for the case, 
but the claim has been sustained on a principle 
which so entirely pervades the constitution, is so 
intermixed with the materials which compose it, so 
interwoven with its web, so blended with its tex- 
ture, as to be incapable of being separated from it 
without rendering it into shreds.*' ^ 

This was, indeed, going far — the powers of Con- 
gress placed on **a principle" rather than on the 
language of the Constitution. When we^oonsider 
the period in which this opinion was given to the 
country, we can understand — though only vaguely 
at this distance of time — the daring of John 
Marshall. Yet he realizes the extreme radicalism 
of the theory of Constitutional interpretation he is 
thus advancing, and explains it with scrupulous care. 

^^This great principle is that the constitution and 
the laws made in pursuance thereof are supreme; 
that they control the constitution and laws of the 
respective states, and cannot be controlled by them. 
From this, which may be almost termed an axiom, 

^ 4 IVheaton* 4£5-£6. 



/' 



S04 



JOHN MARSHALL 



> 



'I 



other propositions are deduced as corollaries, on the 
truth or error of which . . the cause is supposed to 
depend." ^ 

That "cause" was not so much the one on the 
docket of the Supreme Court, entitled M'Culloch 
vs. Maryland, as it was that standing on the docket 
of fate entitled Nationalism vs. Localism. And, 
although Marshall did not actually address them, 
everybody knew that he was speaking to the dis- 
unionists who were increasing in numbers and bold- 
ness. Everybody knew, also, that the Chief Justice 
was, in particular, replying to the challenge of the 
Virginia Republican organization as given through 
the Court of Appeals of that State.* 
' The corollaries which Marshall deduced from the 
principle of National supremacy were: "1st. That a 
power to create implies a power to preserve. 2d. 
That a power to <iestroy, if wielded by a diflferent 
hand, is hostile to, and incompatible with these pow- 
ers to create and to preserve. Sd. That where this 
repugnancy exists, that authority which is supreme 
must control, not yield to that over which it is 
supreme." » 

? It is "too obvious to be denied," continues Mar- 
shall that, if permitted to exercise the power, the 
States can tax the Bank "so as to destroy it." The 
power of taxation is admittedly "sovereign"; but 
the taxing power of the States "is subordinate to, 
and may be controlled by the constitution of the 
United States. How far it has been controlled by that 
instrument must be a question of construction. In 

^ 4 Wheftton, 4126. ^ See9upra,l5S et seq.. * 4 Wheaton, 426. 



VITALIZING THE CONSTITUTION 306 

making this construction, no principle not declared 
can be admissible, which would defeat the legitimate 
operations of a supreme government. It is of the 
very essence of supremaqy to remove all obstacles j 
to its action within its own sphere, and so to mod- 
ify every power vested in subordinate governments 
as to exempt its own operations from their own 
influence. This effect need not be stated in terms. 
It is so involved in the declaration of suprem- 
acy, so necessarily implied in it, that the expres- 
sion of it could not make it more certain. We must, 
therefore, keep it [the principle of National suprem- 
aoy] in view while construing the constitution.'* ^ I ^ua/*^^^ 

Unlimited as is the power of a State to tax objects ^[^ j^. ^ 
within its jurisdiction, that Stote power does not '^^>^^\l^ ^ 
"extend to those means whjch are^employed by Con- o . i/r^ 
gress to carry into ^ecution powers conferred oA ^j[g^ ^^^"^ 
that body by the people of the United States . J ^^fi^ju^' 
powers . . given . . to a government whose laws . . 
are declared to be supreme. . . The right never ex- 
isted [in the States] . . to tax the means employed] 
by the government of the Union, for the execution 
of its powers.*' * 

Regardless of this fact, however, can States tax , 
instrumentalities of the National Government? It ' 
cannot be denied, says Marshall, that "the power to 
tax involves the power to destroy; that the power ^ y 
to destroy may defeat . . the power to create; that 
there is a plain repugnance, in conferring on one 
government a power to control the constitutional 
measures of another, which other, with respect to 

1 4 Wheaton, 4«7. * lb. 4«9-80. 



306 JOHN MARSHALL 

those very measures, is declared to be supreme/over 
that which exerts the control/* ^ 

Here Marshall permits himself the use of s^^trcasm, 
which he dearly loved but seldom employed - The 
State Rights advocates insisted that the States can 
be trusted not to abuse their powers — confidence 
must be reposed in State Legislatures and officials; 
they would not destroy needlessly, recklessly. "All 
inconsistencies are to be reconciled by the magic of 
the word confidence/* says Marshall. "But/* he 
continues, "is this a case of * confidence*? Would 
the people of any one state trust those of another 
with a power to control the most insignificant opera- 
tions of their state government? We know they 
would not.** 

By the same token the people of one State would 
never consent that the Government of another State 
should control the National Government "to which 
they have confided the most important and most 
valuable interests. In the legislature of the Union 
alone, are all represented. The legislature of the 
Union alone, therefore, can be trusted by the people 
with the power of controlling measures which con- 
cern all, in the confidence that it will not be abused. 
This, then, is not a case of confidence.** * 

The State Rights theory is "capable of arresting 
all the measures of the government, and of pros- 
trating it at the foot of the states.** Instead of the 
/ National Government being "supreme,** as the Con- 
stitution declares it to be, "supremacy** would be 
transferred "in fact, to the states**; for, "if the 

^ 4 Wheaton, 481. * lb. 



VITALIZING THE CONSTITUTION 807 

states may tax one instrument, employed by the 
government in the execution of its powers, they may 
tax any and every other instrument* They may tax 
the mail; they may tax the mint; they may tax 
patent-rights; they may tax the papers of the cus- 
tom-house; they may tax judicial process; they may 
tax all the means employed by the government, to 
an excess which would defeat all the ends of govern- 
ment. This was not intended by the American peo- 
ple. They did not design to make their government 
dependent on the states.*' 

The whole question is, avows Marshall, " in truthjx 
a question of supremacy?* If the anti-National f 
principle that the States can tax the instnmi^ntali- V 
ties of the National Government is to be sustained, f 
then the declaration in the Constitution that it and \ 
laws made under it "shall be the supreme law of the J 
land, is empty and unmeaning declamation.^ ^ 

Maryland had argued that, since the taxing power i 
is, at least, "concurrent" in the State and National 
Governments, the States can tax a National bank as 
fully as the Nation can tax State banks. But, re- 
marks Marshall, "the two cases are not on the same 
reason." The whole American people and all the 
States are represented in Congress; when ^ey 
tax State banks, "they tax their constituents; andl 
these tax^ miist be uniform. But, when a state taxes 
the operations of the government of the United 
States, it acts upon institutions created, not by their 
own constituents, but by people over whom they 
claim no controL It acts upon the measures of a 

^ 4 Wheaton, 48^^^. 




308 JOHN MARSHALL 

government created by others as well as themselves, 
for the benefit of others in common with themselves. 
"The diflFerence is that which always exists, and 
always must exist, between the action of the whole 
on a part, and the action of a part on the whole — 
between the laws of a government declared to be 
supreme, and those of a government which, when 
in opposition to those laws, is not supreme. • . The 
states have no power, by taxation or otherwise, to 
retard, impede, burden, or in^ny manner control 
the operations of the constitutional laws enacted by 
Congress to carry into execution the powers vested 
in the general government.'' ^ 
I For these reasons, therefore, the judgment of the 
iSupreme Court was that the Maryland law taxing 
/the Baltimore branch of the National Bank was " con- 
I trary to the constitution . . and void"; that the judg- 
ment of the Baltimore Coimty Court against the 
branch bank "be reversed and annulled," and that 
the judgment of the Maryland Court of Appeals 
affirming the judgment of the County Court also 
"be reversed and annulled." * 
\ In eflFect John Marshall thus rewrote the f unda- 

/nental law of the Nation; or, perhaps it may be more 
accurate to say that he made a written instrument a 
living thing, capable of growth, capable of keeping 
pace with the advancement of the American people 
and ministering to their changing necessities. This 
greatest of Marshall's treatises on government may 
well be entitled the "Vitality of the Constitution." 
Story records that Marshall's opinion aroused great 

1 4 Wheaton, 485-86. > lb. 487. 

V 



'1 



VITALIZING THE CONSTITUTION 309 

political excitement;^ and no wonder, since the Chief 
Justice announced, in principle, that Congress had 
sufficient power to "emancipate every slave in the 
United States" as John Randolph declared five 
years later.* ^^ 

Roane, Ritchie, Taylor, and the Republican organ- 
ization of Virginia had anticipated that the Chief 
Justice would render a Nationalist opinion; but they 
were not prepared for the bold and crushing blows 
which he rained upon^ their fanatically cherished the- 
ory of Localism. As ifoon as they recovered from their 
surprise and dismay, they opened fire from their 
heaviest batteries upon Marshall and the National 
Judiciary. The way was prepared for them by a 
preliminary bombardment in the Weekly Register of 
Hezekiah Niles. 

i This periodical had now become the most widely 
read and influential publication in the country; it 
had subscribers from Portland to New Orleans, tjx)in ^<^c^^j^/i/^ 
Savannah to jlgrtDearbom.? Niles had won the con- fL0^ 
fidence of his far-flung constituency by his honesty, 
courage, and abihty. He was the prototype of Hor- 
ace Greeley, and the Register had much the same 
hold on its readers that the Tribune came to have 
thirty years later. 

' In the first issue of the Register, after Marshall's 
opinion was delivered, Niles began an attack upon 
it that was to spread all over the land. **A deadly 
bloia[^has been struck at the sovereignty qf the stateSy \ ^ 
and from a quarter so far removed from the people 
as to be hardly accessible to pubhc opinion,** he 

^ Story to his mother^ March 7, 1819» Story, i» 825-^. 
> See u^ra, 420; also dfUHtl; 8d8-89» 584-^7.. 



310 JOHN MARSHALL 

wrote. **The welfare of the union has received a 
more dangerous wound than fifty Hartford conven- 
tions • . could inflict/' Parts of Marshall's opinion 
are ^* incomprehensible. But perhaps, as some people 
tell us of what they call the mysteries of religion, the 
common people are not to understand them, such 
things being reserved only for the priests I T*^ 

The opinion of the Chief Justice was publiished in 
full in Niles's Register two weeks after he delivered 
it,* and was thus given wider pubUcity than any 
judicial utterance previously rendered in America. 
Indeed, no pronoimcement of any court, except, per- 
haps, that in Gibbons vs. Ogden,^ was read so gener- 
ally as Marshall's opinion in M'Culloch vs. Mary- 
land, until the publication of the Dred Scott decision 
thirty-eight years later. Niles continues his attack 
in the number of the Register containing the Bank 
opinion : 

It is "more important than any ever before pro- 
nounced by that exalted tribimal — a tribunal so 
far removed from the people, that some seem to re- 
gard it with a species of that awful reverence in which 
the inhabitants of Asia look up. to their princes." * 
This exasperated sentence shows the change that 
Marshall, during his eighteen years on the bench, 
had wrought in the standing and repute of the Su- 
preme Court.* The doctrines of the Chief Justice 
amount to this, said Niles — "congress may girant 
monopolies " at will, " if the price is paid for them, or 

without any pecuniary consideration at all." As for 



1 Niles, XVI, 41-44. 
* NUes, XVI, 65. 



* lb. 68-76. • See iirfra, chap. vm. 

* See vol. m, 180-81, of this work. 



VITALIZING THE CONSTITUTION 311 

the Chief Justice personally, he "has not added . . 
to his stpck of reputation by writing it — it is ex- 
cessively laboredJ* ^ 

Papers throughout the country copied Niles's bit- 
ter criticisms,* and public opinion rapidly crystal- 
lized against Marshall's Nationalist doctrine. Every 
where the principle asserted by the Chief Justice 
became a political issue; or, rather, his declaration, 
that that principle was law, made sharper the contro- 
versy that had divided the people since the framing 
of the Constitution. 

In number after number of his Register^NiieBy pours 
his wrath on Marshall's matchless interpretation. 
It is " far more dangerous to the union and happiness 
of the people of the United States than . . foreign 
invasion.* . . Certain nabobs in Boston, New York, 
Philadelphia and Baltimore, • . to secure thepassage 
of an act of incorporcOiony . . fairly purchase ^le souls 
of some members of the national legislature with 
money J as happened in Georgia, or secure the votes of 
others by making them stockkoldersy as occurred in 
New York, and the act is passed.^ . . We call upon 
the people, the honest people, who hate monopolies 
and privileged orders^ to arise in their strength and 
purge our political temple of the moneff-changers 
and those who sell doves — causing a reversion to 
the original purity of our system of government, 

^ Niles, xvi, 65. 

* 16. 97. For instance, the Nakhez PreHf in announcing its inten- 
tion to print Marshall's whole opinion, says that, if his doctrine pre- 
vails, ''the independence of the individual states . . is obliterated at 
one fdl sweep.'* No country can remain free ''that tolerates incorpo- 
rated banks, in any guise.*' (16. 210.) 

» lb. 108. « lb. 104. 



\J 



S12 JOHN MARSHALL 

that the faithful centinel may again say, ^All's 

Extravagant and demagogical as this language of 
Niles's now seems, he was sincere and earnest in the 
use of it. Copious quotations from the Register have 
been here made because it had the strongest influ- 
ence on American public opinion of any publication 
of its time. Niles's Register was, emphatically, the 
mentor of the country editor.* 

At last the hour had come when the Virginia Re- 
pubUcan triumvirate could strike with an effect im- 
possible of achievement in 1816 when the Supreme 
Court rebuked and overpowered the State appellate 
tribunal in Martin vs. Hunter's Lessee.' Nobody 
outside of Virginia then paid any attention to that 
decision, so obsessed was the country by speculation 
and seeming prosperity. But in 1819 the collapse 
had come; poverty and discontent were universal;- 
rebellion against Nationalism was under way; and 
the vast majority blamed the Bank of the United 
States for all their woes. Yet Marshall had upheld 
**the monster." The Virginia Junto's opportunity 
had arrived. 

No sooner had Marshall returned to Richmond 
than he got wind of the coming assault upon him. 
On March 33, 1819, the Enquirer published his 
opinion in full. The next day the Chief Justice wrote 
Story: "'Our opinion in the Bank case has aroused 
the sleeping spirit of Virginia, if indeed it ever sleeps. 

V 1 Niles, XVI, 105. 

* Niles's attack on Marshall's <^inion in lifCulloch m. Maryland 
ran through three numbers. (See i6. 41-44; lOS-05; 145-47.) 
» See 9wpra, lai-CT. . 



VITALIZING THE CONSTITUTION SIS 

It will, I understand, be attacked in the papers with 
some asperity, and as those who favor it never write 
for the publiek it will remain undefended & of coiu*se 
be considered as damnably heretical.*^ ^ He had been 
correctly informed. The attack came quickly. 

On March 80, Spencer Roane opened fire in the 
paper of his cousin Thomas Ritchie, the Enquirer,^ 
under the nam de gtierre of ** Amphictyon." His first 
article is able, calm, and, considering his intense 
feelings, fair and moderate. Roane even extols his 
enemy: 

, **That this opinion is very able every one must 
admit. This was to have been expected, proceeding 
as it does from a man of the most profound legal 
attainments, and upon a subject which has employed 
his thoughts, his tongue, and his pen, as a poUtician, 
and an historian for more than thirty years. The 
subject, too, is one which has, perhaps more than 
any other, heretofore drawn a broad line of distinc- £ 
tion between the two great parties in this country, 
on which line no one has taken a more distinguished 
and decided rank than the judge who has thus ex- 
pounded the supreme law of the land. It is not in 
my power to carry on a contest upon such a subject 
with a man of his gigantic powers." ' 

Niles had spoken to ^^ the plain people "; Roane is 
now addressing the lawyers and judges of the coun- 
try. His essay is almost wholly a legal argument. 



* ^ Marshall to Story» March d4» 1819» Proceeding^f Mass. Hist. Soe. 
Sd Series* xxv, 824. 
» * See supra, 146. 

* Enquirer, March S0» 1819» as quoted m Branch HisL Papers, 
June* 1005, 6ft-S3. 



314 JOHN MARSHALL 

It IS based on the Virginia Resolutions of 1799 and 
gives the familiar State Rights arguments, applying 
them to Marshall's opinion.^ In his second article 
Roane grows vehement, even fiery, and finally ex- 
claims that Virginia " never will employ force to sup^ 
port her doctrines Oil other measures have entirely 
failed:' * 

His attacks had great and immediate response. 
No sooner had copies of the Enquirer containing 
the first letters of Amphictyon readied Kentucky 
than the Republicans of that State declared war 
on Marshall. On April 20, the Enquirer printed the 
first Western response to Roane's call to armsr Mar- 
shall's principles, said the Kentucky correspondent, 
^'must raise an alarm throughout our widely ex- 
tended empire. . • The people must rouse from the 
lap of Delilah and prepare to meet the Philistines. . . 
No mind can compass the extent of the encroach- 
ments upon State and individual rights which may 
take place under the principles of this decision." ' 

Even Marshall, a political and judicial veteran in 
his sixty-fifth year, was perturbed. "The opinion 
in the Bank case continues to be denounced by 
the democracy in Virginia," he writes Story, after the 
second of Roane's articles appeared. "An effort is 
certainly making to induce the legislature which 
will meet in December to take up the subject & to 
pass resolutions not very unlike those which were 
called forth by the alien & sedition laws in 1799. 

^ Branch Hist. Papers, June, 1905, 51-08. 
* Enquirer, April 2, 1819, as quoted in Branch Hiet. Papers, June^ 
1905,76. (Italics the author's.) 
< Enquirer, April 20, 1819, as quoted in %b. 76. 



/ 



SPENCER ROANK 



VITALIZING THE CONSTITUTION 315 

Whether the eflFort will be successful or not may 
perhaps depend in some measure on the sentiments 
of our sister states. To excite this ferment the 
opinion has been grossly misrepresented ; and where 
its argument has been truly stated it has been met 
by principles one would think too palpably absurd 
for intelligent men. 

**But/' he gloomily continues, ** prejudice will 
swallow anything. If the principles which have been 
advanced on this occasion were to prevail the con- 
stitution would be converted into the old confed- 
eration.*' ^ 

As yet Roane had struck but lightly. He now 
renewed the Republican oflfensive with greater spirit. 
During Jime» 1819, the Enquirer published four ar- 
ticles signed "" Hampden, " from Roane's pen. Ritchie 
introduced the " Hampden '* essays in an editorial in 
which he urged the careful reading of the exposure ^"^^t^^^ 

**of the alarming errors of the Supreme Court. . . 
Whenever State rights are threatened or invaded, 
Virginia will not be the last to sound the tocsin." * 

Are the people prepared **to give carte blanche 
to our federal rulers'*? asked Hampden. Amend- 
ment of the Constitution by judicial interpretation 
is taking the place of amendment by the people. 
Infamous as the methods of National judges had 
been during the administration of Adams, ^^the 
most abandoned of our rulers," Marshall and his 
associates have done worse. They have given "a 

^ Marshall to Story, May ^^ 1819, Proceedings, Maes. Hist. Soe. 
2d Series, xiv, 825. 

* Enquirer, June 11, 1819, as quoted in Branch EieL Papere, June, 
1906, footnote to 77. 



816 



JOHN MARSHALL 



t \ 



f 



< - 



K^ 



I 



general letter of attorney to the future legislators of 
the Union. . • That man must be a deplorable idiot 
who does not see that there is no • • diflference'* be- 
tween an ** unlimited grant of power and a grant 
limited in its terms, but accompanied with unlimited 
means of carrying it into execution. . . The crisis is 
one which portends destruction to the liberties of 
the American people.'* Hampden scoldingly adds: 
"If Mason or Henry could lift their patriot heads 
from the grave, • . they would almost exclaim, with 
Jugurtha, * Venal people! you will soon perish if you 
can find a purchaser.'" ^ 

For three more numbers Hampden pressed the 
RepubUcan assault on Marshall's opinion. The 
Constitution is a " compdct, to which the States are 
the parties." Marshall's argument in the Virginia 
Convention of 1788 is quoted,* and his use of certain 
terms in his "Life of 'Washington" is cited.' K the 
powers of the National Goveiiunent ought to be 
enlarged, "let this be the act of the people, and not 
that of subordinate agents." * The opinion of the 
Chief Justice repeatedly declares "that the general 
government, though limited in its powers, is su- 
preme." Hampden avows that he does "not under- 
stand this jargon. . . The people only are supreme.*^ 
•^ . Oiur general government • . is as much a . .'league' 
as was the former confederation." Therefore, the 

^ Enquirer^ June 11» 1819» as quoted in Branch Hist. Papers, June» 
1905, 77-S2. 

* Enquirer, June 15, 1819, as quoted in i&. 85; also Enquirer, June 
18, 1819, as quoted in t&. 95. 

< Enquirer, June 15, 1819, as quoted in ib. 91. 

^ Ib. 87; also Enquirer, June 18, 1819, as quoted in ib. 96-97. 

• Ib. 98. 



VITALIZING THE CONSTITUTION 317 

'^ginia Court of Appeals, in Hunter vs. Fairfax, 
declared an act of Congress ^^unconstitutional, al- 
though it had been sanctioned by the opinion of the 
Supreme Court of the United States/* Pennsylva- 
nia, too, had maintained its "sovereignty/* ^ 

Hampden has only scorn for ^^some of the judges'* 
who conciured in the opinion of the Chief Justice. 
They "had before been accounted republicans, . . 
Few men come out from high places, as pure as they 
went in.*' * If Marshall*s doctrine stands, "the tri- 
umph over our liberties will be . . easy and com- 
plete.** What, then, could "arrest this calamity**? 
Nothing but an "appeal** to the people. Let this 
majestic and irresistible power be invoked.* 

That he had no faith in his own theory is proved 
by the rather dismal fact that, more than two 
months before Marshall "violated the Constitution** 
and "endangered the liberties** of the people by 
his Bank decision, Roane actually arranged for the 
purchase, as an investment for his son, of $4900 
worth of the shares of the Bank of the United 
States, and actually made the investment.* This 
transaction, consummated even before the argument 

^ Enquirer, June 22, 1819» as quoted in Branch Hist. Papers, June, 
1905. 116. 

» lb. 118. 

' lb. 121. Madison endorsed Roane's attacks on Marshall. (See 
Madison to Roane, Sept. 2» 1819, Writings of James Madfson : Hunt, 
vra, 447-58.) * , "- 

^ See Roane to his son, Jan. 4, 1819, Branch Hist. Papers, June, 
1905, 184; and same to same, Feb. 4, 1819, i&. 135. 

Eighteen days before Marshall delivered his opinion Roane again 
writes hb son: "I have to-day deposited in the vaults of the Virga. 
bank a certificate in your name for 50 shares U. S. bank stock, as per 
memo., by Mr. Dandridge Enclosed. The shares cost, as you will see, 
$98 each." (Roane to his son, Feb. 10, 1819, tb. 180.) 



S18 JOHN MARSHALL 

in M'Culloch vs. Maryland, shows that Roane, the 
able lawyer, was sure that Marshall would and ought 
to sustain the Bank in its controversy with the States 
that were trying to destroy it. Moreover, Dr. John 
Brockenbrough, President of the Bank of Virginia, 
actually advised the investment,^ 

It is of moment, too, to note at this point the 
course taken by Marshall, who had long owned 
stock in the Bank of the United States. As soon as 
he learned that the suit had been brought which, of 
a certainty, must come before him, the Chief Justice 
disposed of his holdings.^ 

So disturbed was Marshall by Roane's attacks 
that he did a thoroughly uncharacteristic thing. 
By way of reply to Roane he wrote, imder the nom 
de gicerre of **A Friend of the Union," an elabo- 
rate defense of his opinion and, through Bushrod 
Washington, procm^ the publication of it in the 
Union of Philadelphia, the successor of the Gazette 
of the United States, and the strongest Federalist 
newspaper then surviving. 

On Jime 28, 1819, the Chief Justice writes Wash- 
ington: "I expected three numbers would have con- 
cluded my answer to Hampden but I must write 
two others which will follow in a few days. K the 
publication has not commenced I could rather wish 

^ Roane to his son, note 4, p. 817. 

* The entire transaction is set out in letters of Benjamin Watkins 
Leigh to Nicholas Biddle, Aug. 21, Aug. 28, Sept 4, and Sept. 18. 
1837; and Biddle to Leigh, Aug. 24 and 25, Sept 7 and Sept. 15, 1887. 
(Biddle MSS. in possession of Professor R. C. McGiane of the Uni- 
versity of Ohio, to whose courtesy the author is [indebted for the 
use of this material. These letters appear in full in the Correspond' 
ence cf NichoUu Biddle: McGrane, 288-89, 291-92, published in Sep- 
tember, 1919, by Houghton Mifflin Company, Boston.) 



VITALIZING THE CONSTITUTION S19 

the signature to be changed to * A Constitutionalist/ 
A Friend of the Constitution is so much like a Friend 
of the Union that it may lead to some suspicion of 
identity. * • I hope the publication has commenced 
unless the Editor should be unwilling to devote so 
much of his paper to this discussion. The letters of 
Amphyction & of Hampden have made no great 
impression in Richmond but they were designed for 
the country [Virginia] & have had considerable in- 
fluence there. I wish the refutation to be in the 
hands of some respectable members of the legislature 
as it may prevent some act of the assembly [torn — 
probably "both"] silly & wicked. If the publication 
be made I should [like] to have two or three sets of 
the papers to hand if necessary. I will settle with 
you for the printer.'* ^ 

The reading of Marshall's newspaper effort is 
exhausting; a summary of the least uninteresting 
passages will give an idea of the whole paper. The 
articles published in the Enquirer were intended, 
so he wrote, to inflict "deep wounds on the consti- 
tution,'* are full of "mischievous errours," and are 
merely new expressions of the old Virginia spirit of 
hostility to the Nation. The case of M'Culloch V3. 
Maryland serves only as an excuse "for once more 
agitating the publick mind, and reviving those un- 
founded jealousies by whose blind aid ambition 
dimbs the ladder of power." * 

^ Marshall to Bushrod Washington, June 28, 1819. This letter is 
unsigned, but is in Marshall's unmistakable handwriting and is en- 
dorsed by Bushrod Washington* ''C. Just. Marshall.*' (Marshall 
MSS. Lib. Cong.) 

s Union, Apnl M, 1819. 



820 JOHN MARSHALL 

After a long introduction, Marshall enters upon 
his defense which is as wordy as his answer to the 
Virginia Resolutions. He is sensitive over the charge, 
'by now popularly made, that he controls the Su- 
preme Court, and cites the case of the Nereid to 
prove that the Justices give dissenting opinions 
whenever they choose. **The course of every tri- 
bunal must necessarily be, that the opinion which 
is to be delivered as the opinion of the coiui:, is 
previously submitted to the consideration of all the 
judges; and, if any part of the reasoning be dis- 
approved, it must be so modified as to receive the 
approbation of all, before it can be delivered as 
the opinion of all.*' 

Roane's personal charges amount to this: *^The 
chief justice . . is a federalist; who was a politician 
of some note before he was judge; and who with his 
tongue and his pen supported the opinions he 
avowed." With the politician's skill Marshall uses 
the fact that the majority of the court, which gave 
the Nationalist judgment in M'Culloch vs. Mary- 
land, were Republicans — **four of whom [Story, 
Johnson, Duval, and Livingston] have no political 
sin upon their heads; — who in addition to being 
eminent lawyers, have the still greater advantage 
of being sound republicans; of having been selected 
certainly not for their federalism, by Mr Jeflferson, 
and Mr Madison, for the high stations they so prop- 
erly fill.'* For eight tedious colimms of diffuse repe- 
tition Marshall goes on in defense of his opinion.^ 

When the biographer searches the daily life of a 

^ Union, April 124, 1819. 



L 



VITALIZING THE CONSTITUTION 881 

man so surpassingly great and good as Marshall, he 
hopes in no ungenerous spirit to find some human 
frailty that identifies his hero with mankind. The 
Greeks did not fail to connect their deities with hu- 
manity. The leading men of American history have 
been ill-treated in this respect — for a century they 
have been held up to our vision as superhuman 
creatures to admire whom was a duty» to criticize 
whom was a blasphemy, and to love or understand 
whom was an impossibility. 

AU but Marshall have been rescued from this 
frigid isolation. Any discovery of human frailty in 
the great Chief Justice is, therefore, most welcome. 
Some small and gracious d^ects in Marshall's char- 
acter have appeared in the course of these volumes; 
and this additional evidence of his susceptibility 
to ordinary emotion is very pleasing. With all his 
stem repression of that element of his character, we 
find that he was sensitive in the extreme; in reality, 
thirsting for approval, hurt by criticism. In spite / 
of this desire for applause and horror of rebuke, \ 
however, he did his duty, knowing beforehand that; 
his finest services would surely bring upon him the 
denunciation and abuse he so disliked. By such 
peevishness as his anonymous reply in the Union to 
Roane's irritating attacks, we are able to get some 
measure of the true proportions of this august yet 
very human character. 

When Marshall saw, in print, this controversial 
product of his pen, he was disappointed and de- 
pressed. The editor had, he avowed, so confused 
the manuscript that it was scarcely intelligible. At 



822 JOHN MABSHAXX 

any rate, Marshall did not want his defense repro- 
duced in New England. Story had heard of the 
article in the Union, and wrote Marshall that he 
wished to secure the publication of it. The Chief 
Justice replied: 

^'The piece to which you allude was not publi^ed 
in Virginia. Our patriotic papers admit no such 
political heresies. It contained, I think, a complete 
demonstration of the fallacies & errors contained in 
those attacks on the opinion of the Court which 
have most credit here & are supposed to proceed 
from a high source,^ but was so mangled in the pub- 
lication that those only who had bestowed close 
attention to the subject could understand it. 

"There were two numbers ^ & the editor of the 
Union in Philadelphia, the paper in which it was 
published, had mixed the different numbers to- 
gether so as in several instances to place the 
reasoning intended to demonstrate one proposition 
under another. The points & the ai^uments were so 
separated from each other, & so strangely mixed as 
to constitute a labyrinth to which those only who 
understood the whole subject perfectly could find 
a due." • 

It appears that Story insisted on having at least 
Marshall's rejoinder to Boane's first article repro- 
duced in the Boston press. Again the Chief Justice 
evades the request of his associate and confidant: 

^ Manball means that Jeff erscm inspired Boane^s attacks. 

^ Marshall had written five essays* but the editor condensed them 
into two numbers. 

> Marshall to Story, May 27, 1S19, Proceeiingi, Man. Hid. Soe. 
9d Series, zxv, 825. 



VITALIZING THE CONSTITUTION S28 

'"I do not think a republication of the piece yoti 
mention in the Boston papers to be desired, as the 
antifederalism of Virginia will not, I trust, find its 
way to New England. I should also be sorry to see 
it in Mr, Wheaton's ^ appendix because that circum- 
stance might lead to susj^cions regarding the author 
& because I should regret to see it republished in its 
present deranged form with the two centres trans- 
posed/* * 

For a brief space, then, the combatants rested on 
their arms, but each was only gathering strength 
for the inevitable renewal of the engagement which 
was to be sterner than any previous phases of the 
contest. 

Soon after the convening of the first session of the 
Virginia Legislature held subsequent to the decision 
of M'Culloch vs. Maryland, Roane addressed the 
lawmakers through the Enquirer, now signing him- 
self "Publicola/* He pointed out the "absolute 
disqualification of the supreme court of the U. S. to 
decide with impartiality upon controversies between 
the General and State Governments'";' and, to 
^^ ensure unbiMsed** decisions, insisted upon a Con- 
stitutional amendment to establish a tribunal "'(as 
occasion may require)*' appointed partly by the 
States and partly by the National Government, 
"with appellate jurisdiction from the present su- 
preme court*' * 

Promptly a resolution against Marshall's opinion 

^ H^iiy Wheaton» Reporter of the Supreme 0>iirt. 
> Marshall to Story, July 18» 1819, Proceedings, Maee. Hist. Soc. 
dd Series, xiv, 826. 
* Enqisirer, Jan. 80, 1821. « 16. Feb. 1, 182L 



324 JOHN MARSHALL 

was oflFered in the House of Del^ates.* This note- 
worthy paper was presented by Andrew Stevenson, 
a member of the "committee for Courts of Jus- 
tice.** * The resolutions declared that the doctrines 
of M'Culloch vs. Maryland would "undermine the 
pillars of the Constitution itself/* The provision 
giving to the judicial power " all cases arising under 
the Constitution** did not "extend to questions which 
! would amoimt to a subversion of the constitution 
itself » by the usurpation of one contracting party 
on another.** But Marshall's opinion was calculated 
to " change the whole character of the government.** ' 
Sentences from the opinion of the Chief Justice 
are quoted, including the famous one: "Let the 
end be legitimate, • • and ail the means which are 
appropriate, • . which are not prohibited, . . are 
constitutional.*' Did not such expressions import 
that Congress could "conform the constitution to 
their own designs** by the exercise of "unlimited 
and imcontro^ed ** power? The ratifying resolution 
of the Constitution by the Virginia Convention of 
1788 is quoted.* Virginia's voice had been heard 
to the same efiPect in the immortal Resolutions of 
1799. Her views had been endorsed by the country 

^ Journal, House of Delegates, Virginia, ISllHtO, 66-^9. 

* lb. 9. « lb. 57. 

* This resolution declared that ^Hrginia assented to the 0>nstitu- 
tion only on condition that "Every power noi gra$Ued, remains with 
the people, and at their will; that ^lerefore no right of any denomina" 
tion can be canceled, abridged^ restrained, or modified, by the congress, 
by the senate, or house of representatives acting in any ci^Muuty; by 
the President or any department, or officer of the United States, ez* 
c^t in those instances in whidi power is givoi by the oonstitutioo 
for those purposes.'* {Journal, House of Delegates, Virginia, 181^ 
20, 58.) 



VITALIZING THE CONSTITUTION 826 



in the Presidential election of 1800 — that "great 
revolution of principle/* Her Legislature, therefore, 
"enter their most solemn protest, against the de- 
cision of the supreme court, and of the principles 
contained in it/' 

In this fashion the General Assembly insisted on 
an amendment to the National Constitution "creat- 
ing a tribunal** authorized to decide questions rela- 
tive to the "powers of the general and state govern- ^ 
ments, imder the compact." The Virginia Senators 
are, therefore, instructed to do their best to secure 
such an amendment and "to resist on every occa- 
sion" attempted legislation by Congress in conflict 
with the views set forth in this resolution or those 
of 1799 "which have been re-considered, and are 
fully and entirely approved of by this Assembly/' 
The Governor is directed to transmit the resolutions 
to the other States.* 

At this point Slavery and Secession enter upon 
the scene. Almost simultaneously with the intro- 
duction of the resolutions denoimdng Marshall and 
the Supreme Coiui: for the judgment and opinion 
in M*Culloch vs. Maryland, other resolutions were 
ofiPered by a member of the House named Baldwin 
denoimcing the imposition of restrictions on Mis- 
soiui (the prohibition of slavery) as a condition of ad- 
mitting that Territory to the Union. Such action by 
Congress would "excite feelings eminently hostile 
to the fraternal afiPection and prudent forbearance 
which ought ever to pervade the confederated 
miion." ^ Two days later, December SO, the same 

^ Journal, House of Delegates, ATirginia, 181^-20, 59. * lb. 76. 



N/ 






I 




826 JOHN MABSHALL 

delegate introduced resolutions to the effect that 
only the maintenance of the State Bi^ts principle 
could "preserve the confederated union/* since 
"no government can long e^t which lies at the 
mercy of another*'; and, inferentially, that Mar- 
shall's opinion in M'Cullodi V9. Maryland had vio- 
lated that principle.^ 
A yet sterner declaration on the Missouri question 

uickly followed, declaring that Congress had no 
wer to prohibit slavery in that State, and that 

"Virginia will suppc»rt the good people of Missouri 
in fEeir just rights • • and will co-operate with them 
in resisting with manly fortitude any attempt 
which Congress may make to impose restraints or 
restrictions as the price of their admission*' to the 
Union. ^ The next day these resolutions, strength- 
ened by amendment, were adopted.' On February 
12, 1820, the resolutions condemning the Nation- 
alist doctrine expounded by the Chief Justice in the 
Bank case also came to a vote and passed, 117 
ayes to 38 nays.* They had been amended and re- 
amended,^ but, as ad(q>ted, they were in substance 
the same as those originally offered by Stevenson. 
Through both these sets of resolutions — that on 
the Missoiui question and that on the Bank deci- 
sion — ran the intimation of forcible resistance to 
National authority. Introduced at practically tl^ 
same time, drawn and advocated by the same men, 
passed by votes of the same members, these impor- 
tant declarations of the Virginia Legislature were 

1 Journal, House of Delegates, Vix^ginia, 1819H20» 85. 

* lb. 105. » lb. 108-09. * lb. 179. • ft. 175-7a 








VITALIZING THE CONSTITUTION S27 

meant to be and must be considered as a single ex- 
pression of the views of Virginia upon National policy. / 

In this wise did the Legislature of his own State 
r^udiate and drfylthat opinion of John MarshaUSu^ U^ 
'^ which has done more for the American Nation than^ 
any single utterance of any other one man, ex- 
cepting only the Farewell Address of Washington. 
In such manner, too, was the slavery question 
brought face to face with Marshall's lasting expo- 
sition of the National Constitution* For, it should 
be repeated, in annoimcing the principles by vir- 
tue of which Congress could estabUsh the Bank of 
the United States, the Chief Justice had also as- 
serted, by necessary inference, the power of the Na- 
tional Legislature to exact the exclusion of slavery 
as a condition upon which a State could be ad- 
mitted to the Union. At least this was the inter- 
pretation of Virginia and the South. 

The slavery question did not, to be sure, closely 
touch Northern States, but their local interests did. 
Thus it was that Ohio aligned herself with Virginia 
in opposition to Marshall's Nationalist statesman- 
ship, and in support of the JefiPersonian doctrine of 
Localism. In such fashion did the Ohio Bank ques- 
tion become so intermingled with the conflict over 
Slavery and Secession that, in the consideration of 
Marshall's opinions at this time, these controversies 
cannot be separated. The facts of the Ohio Bank 
case must, therefore, be given at this point. ^ 

Since the establishment at Cincinnati, early in 
1817, of a branch of the Bank of the United States, 

^ For Marshall's opimon in this controversy see vfifrot 847 et 9eq. 



S28 JOHN MABSHALL 

Ohio had threatened to drive it from the State by 
a prohibitive tax. Not long before the argument of 
M'Culloch vs. Maryland in the Supreme G>urt» the 
Ohio Legislature laid an annual tax of $50,000 on 
each of the two branches which, by that time, had 
been established in that State. ^ On February 8, 1819, 
only four days previous to the hearing of the Mary- 
land case at Washington, and less than a month be- 
fore Marshall delivered his opinion, the Ohio law- 
makers passed an act directing the State Auditor, 
Ralph Osbom, to charge this tax of $50,000 against 
each of the branches, and to issue a warrant for the 
immediate collection of $100,000, the total amount 
of the first year's tax. 

This law is almost without parallel in severity, 
peremptoriness, and defiant contempt for National 
authority. If the branches refused to pay the tax, 
the Ohio law enjoined the person serving the State 
Auditor's warrant to seize all money or property be- 
longing to the Bank, found on its premises or else- 
where. The agent of the Auditor was directed to 
open the vaults, search the offices, and take every- 
thing of value.* 

Immediately the branch at Chillicothe obtained 
from the United States District Court, then in ^ 

^ The second branch was established at Chillicothe. 

* Chap. 83, Laws qf Ohio, 1818-19, 1st Sess. 190-99. 

Section 5 of this act will give the student the spirit of this auto- 
cratic law. This section made it the '*duty " of the State agent collects 
ing the tax, after demand on and refusal of the bank officers to pay 
the tax, if he cannot readily find in the bank offices the necessary 
amount of money, ''to go into each and any other room or vault • . 
and to every doset, chest, box or drawer in such banking hou8e» to 
open and search/' and to levy on everything found. {lb. 198.) 




4. 




'V 



VITALIZING THE CONSTITUTION 329 

session at that place, an injunction forbidding 
Osbom from collecting the tax;^ but the bank's 
counsel forgot to have a writ issued to stay the 
proceedings. Therefore, no order of the court was 
served; instead a copy of the bill praying that the 
Auditor be restrained, together with a subpoena to 
answer, was sent to Osbom. These papers were not, 
of course, an injunction, but merely notice that one 
had been applied for. Thinking to collect the tax 
before the injimction could be issued, Osbom forth- 
with issued his Auditor's warrant to one John L. 
Harper to collect the tax immediately. Assisted by 
a man named Thomas Orr, Harper entered the 
Chillicothe branch of the Bank of the United States, 
opened the vaults, seized all the money to be f oimd, 
and deposited it for the night in the local State bank. 
Next morning Harper and Orr loaded the specie, 
bank notes, and other securities in a wagon and 
started for Columbus.* 

The branch bank tardily obtained an order from 
the United States Court restraining Osbom, the 
State Auditor, and Harper, the State agent, from de- 
livering the money to the State Treasurer and from 
making any report to the Legislature of the collec- 
tion of the tax. This writ was served on Harper as he 
and Orr were on the road to the State Capital with 
the money. Harper simply ignored the writ, drove 

^ A private letter to Niles says that when it was found that an in- 
junction had been granted* the friends of the bank rejoiced, "wine 
was drank freely and mirth abounded." (Niles, zvn, 85.) This ex- 
plains the otherwise incredible negligence of the bank's attorneys in 
the proceedings next day. 

* Niles, zvn, 85-S7, reprinting account as published in the ChiUp 
caihe Supporter, Sept. %i, 1819, and the Ohio Monitor, Sept. 25, 1819. 



3S0 JOm^ MARSHALL 

on to Columbus/ and handed over to the State 
Treasurer the f imds which he had seized at Chilli- 
oothe. 

Harper and Orr were promptly arrested and im- 
prisoned in the jail at Chillicothe.^ Because of tech- 
nical defects in serving the warrant for their arrest 
and in the retiun ci the marshal, the prisoners were 
set free,^ An order was secured from the United 
States Court directing Osbom and Harper to show 
cause why an attachment should not be issued against 
them for having disobeyed the court's injunction not 
to deliver the bank's money to the State Treasurer. 
After extended argument, the coiurt issued the at- 
tachment» which, however, was not made returnable 
until the January term, 1821. 

Meanwhile the Virginia Legislature passed its 
resolutions denoimdng Marshall's opinion in M'Cul- 
loch vs. Maryland, and throu^out the coimtry the 
warfare upon the Supreme Coiul began. The Leg- 
islature of Ohio acted with a celerity and boldness 
that made the procediu^ of the Virginia Legislature 
seem hesitant and timid. A joint committee was 
speedily appointed and as promptly made its report. 
This report and the resolutions recommended by it 
were adopted without delay and transmitted to the 
Senate of the United States.' 

The Ohio declaration is drawn with notable 
ability. A State cannot be sued — the true mean- 
ing of the Constitution forbids, and the Eleventh 
Amendment specifically prohibits, such procedure. 

1 Naes, xvn, 147. « lb. 888. 

' Report oi Committee made to the Ohio Legislature and trans* 
mitted to Congress. {Annala^ 16th Cong. 2d Sess. 1685 d seq.) 



VITALIZING THE CO^TITBTEON 381 

Yet the action against Osbom, State Auditor, and 
Samuel Sullivan, State Treasurer, is, " to every sub- 
stantial purpose, a process against the State/' The 
decision of the National Supreme Court that the 
States have no power to tax branches of the Bank of 
the United States does not bind Ohio or render her 
tax law "a dead letter/' ^ 

The Ohio Legislature challenges the bona fides of 
M'CuUoch V8. Maryland: ""If, by the management of 
a party, and through the inadvertence or connivance 
of a State, a case be made, presenting to the Supreme 
Court of the United States for decision important • • 
questions of State power and State authority, upon 
no just principle ought the States to be concluded 
by any decision had upon such a case. • • Such is the 
true character of the case passed upon the world by 
the title of McCulloch vs. Maryland,'^ which, "when 
looked into, is f oimd to be . . throughout, an agreed 
case, made expressly for the purpose of obtaining the 
opinion of the Supreme Court of the United States. 
. . This agreed case was manufactured in the sum* 
mer of the year 1818'' and rushed through two 
Maryland courts, " so as to be got upon the docket 
of the Supreme Court of the United States for adju- 
dication at their February term, 1819. . . It is truly 
an alarming circumstance if it be in the power of an 
aspiring corporation and an unknown and obscure 
individual thus to elicit opinions compromitting the 
vital interests of the States that compose the Ameri- 
can Union." 

Luckily for Ohio and all the States, this report 

^ ArmaU, 16th Cong. 2d Sees. 1691. 



K 

V 



882 - JOflN MARSHALL 

goes on to say, some of Marshall's opinions have 
been ^^ totally impotent and unavailing/' as, for in- 
stance, in the case of Marbury vs. Madison. Mar- 
bury did not get his connnission; ''the person ap- 
pointed in his place continued to act; his acts 
were admitted to be valid; and President JefiPerson 
retained his standing in the estimation of the Ameri- 
can people." It was the same in the case of Fletcher 
vs. Peck. Marshall held that "the Yazoo pur- 
chasers • • were entitled to their lands. But the 
decision availed them nothing, unless as a make- 
weight in effecting a compromise." Since, in neither 
of these cases, had the National Government paid 
the slightest attention to the decision of the Su- 
preme Court, how could Ohio "be condemned be- 
cause she did not abandon her solenm legislative 
acts as a dead letter upon the promulgation of an 
opinion of that tribimal"? * 

The Ohio Legislature then proceeds to analyze 
Marshall's opinion in M'Culloch vs. Maryland. All 
the arguments made against the principle of implied 
powers since Hamilton first annoimced that prin- 
ciple,' and all the reasons advanced against the doc- 
trine that the National Government is supreme, in 
the sense employed by Marshall, are restated with 
clearness and power. However, since the object of 
the tax was to drive the branches of the Bank out 
of Ohio, the Legislature suggests a compromise. If 
the National institution will cease business vnthin 
the State and "give assurance" that the branches 

1 Annah, 16th Cong. 2d Sesa. 1696-97. 
' See vol. n» 7i^-74» <rf this work. 



VITALIZING THE CONSTITUTION 383 

be withdrawn, the State will refund the tax money 
it has seized.^ 

Instantly turning from conciliation to defiance, 
^^ because the reputation of the State has been as- 
sailed/' the Legislature challenges the National Gov- 
ernment to make good Marshall's assertion that the 
power which created the Bank ** must have the power 
to preserve it." Ohio should pass laws "forbidding 
the keepers of our jails from receiving into their cus- 
tody any person committed at the suit of the Bank 
of tJie United States," and prohibiting Ohio judges, 
recorders, notaries public, from recognizing that in- 
stitution in any way.* Congress will then have to 
provide a criminal code, a system of conveyances, 
and other extensive measures. Ohio and the coim- 
try will then learn whether the power that created 
the Bank can preserve it. 

The Ohio memorial concludes with a denial that 
the "political rights" and "sovereign powers" of 
a State can be settled by the Supreme Court of the 
Nation "in cases contrived between individuab, and 
where they [the States] are, no one of them, parties 
direct." The resolutions further declare that the 
opinion of the other States should be seciured.' This 
alarming manifesto was presented to the National 
Senate on February 1, 1821, just six weeks before 
Marshall delivered the opinion of the Supreme Cpurt 
in Cohens vs. Virginia.* '^ 

Pennsylvania had already taken stronger measures ; 
had anticipated even Virginia. Within 9%ven weeks 

1 Annala, 16th Cong. 9d Seas. 171«. * I6/^71S. « lb. 1714. 
* See u^rOf chap, vn of this work. ^* 



3S4 JOHN MABSHALL 

from the delivery of MarshalFs opinion in M'Culloch 
vs. Maryland, the Legislature of Pennsylvania pro- 
posed an amendment to the Nationid G>nstitution 
prohibiting Congress from authorizing "any bank 
or other monied institution ** outside of the District 
of Columbia.^ Hie action of Ohio was an endorse- 
ment of that of Virginia and Pennsylvania. Indiana 
had already swung into line.^ So had Illinois and 
Tennessee.' For some reason, Kentucky, soon to be- 
come one of the most belligerent and persevering of 
all the States in her resistance to the "encroach- 
ments *' of Nationalism as expounded by the Supreme 
Court, withheld her hand for the moment. 

Most unaccountably. South Carolina actually up- 
held Marshall's opinion,^ which that State, within 
a decade, was to repudiate, denotmce, and defy in 
terms of armed resistance.* New York and Massa- 
chusetts,* consulting their immediate interests, were 
very stem against the Localism of Ohio, Virginia, and 
Pennsylvania.^ Georgia expressed her sympathy 
with the Localist movement, but, for the time being, 
was complaisant ^ — a fact the more astonishing that 
she had already proved, and was soon to prove 
again, that Nationalism is a fantasy unless it is 
backed by force.* 

Notwithstanding the eccentric attitude of vari- 
ous members of the Union, it was only too plain that 

^ State Doe. Fed. ReL: Ames, 00; and see Niles, xvi, 97» 1S2. 

* Pennsylvania House of Representatives, Journal^ 1819-20, SS7; 
State Doc. Fed. Rd.: Ames, footnote to 90-91. 

« lb. * lb. 91. 

• See ifrfra, chap. z. * State Doe. Fed. ReL: Ames, 91^108. 
' lb. 9«, 101-OS. * lb. 91. • See «r|fro, chap. x. 



\ 



VITALIZING THE CONSTITUTION S85 

a powerful group of States were acting in concert and 
that others ardently sympathized with them. 

At this points in different fashion, Virginia spoke 
again, this time by the voice of that great protagonist 
of Localism, John Taylor of Caroline, the originator 7 ^ 
of the Kentucky Resolutions,^ and the most brilliant 
mind in the Republican organization of the Old 
Dominion. Immediately after Marshall's opinion in 
M'Culloch vs. Maryland, and while the Ohio conflict 
was in progress, he wrote a book in denunciation and 
refutation of Marshall's Nationalist principles. The 
editorial by Thomas Ritchie, commending Taylor's 
book, declares that ^^the crisis has come"; the Mis- 
souri question, the Tariff question, the Bank question, 
have brought the coimtry to the point where a de- 
cision must be made as to whether the National 
Government shall be permitted to go on with its usur- 
pations. '*If there is any book capable of arousing 
the people, it is the one before us." 

Taylor gave to his volume the title "Construc- 
tion Construed, and Constitutions Vindicated." The 
phrases "exclusive interests" and "exclusive priv- 
ileges" abound throughout the volume. Sixteen 
chapters compose this classic of State Rights philos- 
ophy. Five of them are devoted to Marshall's opin- 
ion in M'Culloch vs. Maryland; the others to the- 
ories of government, the state of the country, the 
protective tariff, and the Missouri question. The 
principles of the Revolution, avows Taylor, "are 
the k^s of construction" and "the locks of liberty.^ 

^ See vol. n, 897, of this work. 

* Taybr: dmttruction ConHnwdt and CondUmHom Vindieaied, 9. 



/ 



'^i^ 



'\ 



836 JOHN MARSHALL 

• • No form of government can foster a fanaticism for 
wealth, without being corrupted." Yet Marshall's 
ideas establish "the despotic^ principle of a gratui- 
tous distribution of wealth and poverty by law/' ^ 
If the theory that Congress can create corporations 
should prevail, "legislatures will become colleges for 
teaching the science of getting money by monopolies 
or favours/* * To pretend faith in Christianity, and 
yet foster monopoly, is "like placing Christ on the 
car of Juggernaut/* • The framers of the National 
r Constitution tried to prevent the evils of monopoly 
I and avarice by "restricting the powers given to 
I Congress'* and safeguarding those of the States; "in 
j fact, by securing the freedom of property/* * 

Marshall is enamored of the word "soverdgnty/* 
an "equivocal and illimitable word,*^ not found in 
" the declaration of independence, nor the federal con- 
stitution, nor the constitution of any single state **^ 
all of them repudiated it " as a traitor of civil rights/* * 
Well that they had so rejected this term of despot- 
ism! No wonder Jugurtha exclaimed, "Rome was 
for sale,** when " the government exercised an .abso- 
lute power over the national property/* Of course 
it would "find purchasers/* ® To this condition 
Marshall's theories will bring America. 

Whence this effort to endow the National Grovem- 
ment with powers comparable to those of a mon- 
archy? Plainly it is a reaction — "many wise and 
good men, . • alarmed by the illusions of Rousseau 

^ Taylor: ComtmcHon Corutrued, 11-12. Taylor does not» of course, 
call Marshall by name, either in this book or in his other attacks on 
the Chief Justice. 

> lb. 15. • 16. 16 « /». 18. > 16. 25HM • 16. 28. 



%^ip^^ ^,s/yit^ 




k 



VITALIZING THE CONSTITUTION 887 

and Godw in, and the atrocities of the French revo^ 
lution, honestly believe that these [democratic] 
principles have teeth and daws, which it is expe- 
dient to draw and pare, however constitutional they 
may be; without considering that such an operation 
will subject the generous lion to the wily fox; • • sub- 
ject liberty and property to tyranny and fraud/* ^ 

In chapter after chapter of clever arguments, 
illumined by the sparkle of such false gems as these 
quotations, Taylor prepares the public mind for his 
direct attack on John Marshall. He is at a sad dis- 
advantage; he, ^^an unknown writer,'' can offer only 
^^an artless course of reasoning" against the ^^ acute 
argument" of Marshall's opinion, concurred in by 
the members of the Supreme Court whose '^ talents," 
"integrity," "uprightness," and "erudition" arer 
universally admitted.^ The essence of Marshall's 
doctrine is that, although the powers of the National 
Government are limited, the means by which they 
may be executed are unlimited. But, "as ends may 
be made to beget means, so means may be made 
to b^et ends, until the co-habitation shall rear a 
progeny of unconstitutional bastards, which were 
not begotten by the people." ' ' 

Marshall had said that "* the creation of a cor- 
poration appertains to sovereignty.'" This is the 
language of tyranny. The cori>orate idea crept into 
British kS^Vherein it hides the heart of a prosti- 
tute unc^Phe habiliments of a virgin." ^ But since, 
in America, only the people are "sovereign," and, 
to use Marshall's own words, the power to create 

^ TayUx: Cimitrudum C(m9trwd,Tr. <J6.79. '16.84. « 16.87. 



SS8 JOHN MABSHALL 

corporations "appertains to sovereignty^." it follows 
that neither State nor National Governments can 
oeate corporations. * 

The Chief Justice is a master c^ the "science of 
verbality" by which the Constitution may be ren- 
dered "as unintelligible, as a single word would be 
made by a syllabick dislocation, or a jumble of its 
letters; and turn it into a reservoir of every meaning 
for which its «cpoimder may have occasion." 

Where does Marshall's "artifice of verbalizing" 
lead? ' To an "artificially reared, a monied inter- 
est . . which is gradually obtaining an influence over 
the federal government," and "craftily works upon 
the passions of the states it has been able to delude ' * 
[ on the slavery question ], " to coerce the d^rauded 
and discontoited states into submission." For 
this reason talk of civil war abounds. "For what 
are the states talking about disunion, and for what 
are they going to war among themselves? To create 
or establish a monied sect, composed of privileged 
combinations, as an aristocratical oppressor of them 
all." * Marshall's doctrine that Congress may be- 
stow "exclusive privileges" is at the bottom of the 
Missouri controversy. "Had the motive . . never 
existed, the discussion itself would never have ex- 
isted; but if the same cause ital 
controversies may be expected 

■ Taylor: ConjCnufim Coiulnted, 89. SS. 

« lb. 287. 

It ia intereating to obsave tliat Tayld tariff 

OS one of the evila of MarshaH's National troyt 

the diriaum of pow«n between federal i • • >t 

vioUtea the principki of repreKntatJon. . . it reoogniaea m aoverdgD 
power over pKq)erty, .. it dertioyi the freedtm of labour, .. it taxe* 



VITALIZING THE CONSTITUTION 339 

li^nally Taylor hurls at the Nation the challenge 
of the Southi which the representatives of that sec- 
tion, from the floor of Congress, quickly repeated in 
threatenings of civil war.' "There remains a right, 
anterior to every political power whatsoever, . . the 
natural lij^t of self-defence. . . It is allowed, on all 
hands, that danger to the slave-holding states lurks 
in their existing situation, . . and it must be admitted 
that the right of self-defence applies to that situa- 
tion. . . I leave to the reader the application of these 
observations." • 

Immediately iqwn its publication, Ritchie sent a 
copy of Taylor's book to Jefferson, who answered 
that he knew " before reading it" that it would prove 
"cnthodox." The attack upon the National courts 
could not be pressed too oiagetically: "The judi- 
ciaiy of the United States is the subtle corps of sap- 
pers and miners constantly working under ground to 
undermine the foundations of our confederated fab- 
ric. . . An opinion is huddled up in conclave, perhaps 
by a majority ctf one, delivered as if unanimous, and 
with the silent acquiescence of lazy and timid asso- 
"^tes, by a crafty chief judge, who sophisticates the 
law to his mind, by the turn of his own reasoning." * 

the great mm of capital ftodUbour, to eorich the few; . .it increMci 
people .. mcreaMi the mus of poverty; .. it 
I and *nrir-lnHi employers; . . it increuea the 
it, . , it deprives commerce of the freedom of 
ts GongrGM . . generates the extremes of luxury 
:: Cotutnetim Corutnud, i6i-53,) 
Kid see ir^ra, chap. x. 
m Conrinud, 814. 
:, Dec iS, 18«0, WorJct : Ford, xn, 176-78. He 

dedined, however, to permit publicatioii of his endorsement of 

Taylor's book, {lb.) \ 



r 



CHAPTER Vn 



THREATS OF WAB 



\ 



Cannot the Union exist unksB G>ngresB and the Siqweme G>iirt ahall make 
banks and totteries? (John Tnylor "of Caroline/') 

If a judge can repeal a law of Congreai^ by declaring it unconstitutional, is 
not this the exercise of political power? (Senator Richard M. Johnson.) 

The States must shield themsdves and meet the invader foot to foot 

(Jefferson.) 

The United States . . . form a sin^ nation. In war we are one people. In 
making peace we are one people. In all commercial regulations we are one 
and the same people. (Marshafl.) 

The crisis has arrived contemplated by the framers of the Constitution. 

(Senator James Barbour.) 

The appeals of Niles, Roane, and Taylor, and the 
defiant attitude toward Nationalism of Virginia, 
Ohio, Pennsylvania, and other States, expressed a 
widespread and militant Localism which now mani- 
fested itself in another and still more threatening 
form. The momentous and dramatic struggle in Con« 
gress over the admission of Missouri quickly followed 
these attacks on Marshall and the Supreme Court. 

Should that Territory come into the Union only 
on condition that slavery be prohibited within the 
new State, or should the slave system be retained? 
The clamorous and prophetic debate upon thdt ques- 
tion stirred the land from Maine to Louisiana. A di- 
vision of the Union was everywhere discussed, and 
the right of a State to secede was boldly proclaimed. 

In the House and Senate, civil war was threatened. 
^^I fear this subject will be an ignited spark, which, 
communicated to an immense mass of combustion, 
will produce an explosion that will shake this Union 
to its centre. . . The crisis has arrived, contemplated 



THREATS OF WAR 841 

by the framers of the Constitution. • . This porten- 
tous subject, twelve months ago, was a little speck 
scarcely visible above the horizon; it has already 
overcast the heavens, obscuring every other object; 
materials are everywhere accumulating with which 
to render it darker.** ^ In these bombastic, yet seri- 
ous words Senator James Barbour of Virginia, when 
speaking on the Missouri question on January 14, 
1820, accurately described the situation. 

^^I behold the father armed against the son, • . a 
brother's sword crimsoned with a brother's blood, . . 
our houses wrapt in flames," exclaimed Senator 
Freeman Walker of Georgia. "If Congress • . im- 
pose the restriction contemplated [exclusion of 
slavery from Missouri], . • consequences fatal to the 
peace and harmony of this Union will . . result.'' * 
Senator William Smith of South Carolina asked "if, 
under the misguided influence of fanaticism and 
humanity, the impetuous torrent is once put in mo- 
tion, what hand short of Omnipotence can stay it? " ' 
In picturing the coming horrors Senator Richard 
Mentor Johnson of Kentucky declared that " the 
heart sickens, the tongue falters." * 

In the House was heard language even more san- 
guinary. "Let gentlemen beware!" exclaimed Rob- 
ert Raymond Reid of Georgia; for to put limits on 
slavery was to implant "envy, hatred, and bitter 
reproaches, which 

' Siall grow to dubs and naked swords. 
To murder and to death.* • • 

> AnnaU, 16th Cong. 1st Sess. 107-08. 

« lb. 175. • lb. £75. « lb. 859. 



N 



842 JOHN MARSHALL 

Sir, the firebrand, which is even now cast into your 
society, will require blood . . for its quenching.*' ^ 

Only a few Northern members answered with 
spirit. Senator Walter Lowrie of Pennsylvania pre- 
ferred " a dissolution of this Union ** rather than " the 
extension of slavery.** * Daniel Pope Cook of Illinois 
avowed that 'Hhe sound of disunion • • has been 
uttered so often in this debate, . . that it is high time 
• . to adopt measures to prevent it. . . Such declara- 
tions . . will have no . . eflFect upon me. . . Is it . . 
the intention of gentlemen to arouse . • the South- to 
rebellion?** ' For the most part, however. Northern 
Representatives were mild and even hopeful.* 

Such was the situation concerning which John 
Marshall addressed the American people in his 
epochal opinion in the case of Cohens vs. Virginia. 
The noble passages of that remarkable state paper 
were inspired by, and can be understood only in the 
light of, the crisis that produced them. Not in 
the mere facts of that insignificant case, not in the 
precise legal points involved, is to be found the 

^ Annals, leth Cong. 1st Seas. 10S8. 

* lb, 209. The Justices of the Supreme 0>urt foUowed the proceed- 
ings in Congress with the interest and accuracy of politicians. (See* 
for example* Story's comments on the Missouri oontioyer^» Story to 
White, Feb. 27, 18«0, Story, i, 36i.) 

' Annals, 16th Cong. 1st Sess. 1106-07. 

* For instance, Joshua Cushman of Massachusetts was sure that, 
instead of disunion, **the Canadas, with New Brunswick and Nova 
Scotia, alliued by the wisdom and beneficence of our institutions, wiU 
stretch out their hands for an admission into this XJnioii. The Floridas 
will become a willing victim. Mexico will mingle her lustre with the 
federal constellation. South America . . will bum incense on our . . 
altar. The Republic of the United States shall have dominion from 
sea to sea, . . from the river Columbia to the ends of the earth. The 
American Eagle . . will soar aloft to the stars of Heaven." {lb. 1309.) 



THREATS OF WAR 84S 

inspiration of Marshall's transcendent effort on this 
occasion* Indeed, it is possible, as the Ohio Legisla- 
ture and the Virginia Republican organization soon 
thereafter diarged, that Cohens vs. Virginia was 
^"feigned" for the piupose of enabling Marshall to 
assert once more the supremacy of the Nation. 

If the case came before Marshall normally, without 
design and in the r^ular course of business, it was 
an event nothing short of providential. If, on th e 
c ontrary, it w a s " arranged'" so that M arfihall nnnlrl 
d^ver Jbjs unmortal Nationalist address, never w as 
s uch contrivance so thoroughly justified. While the 
l^gal profession has always considered this case to 
be identical, judicially, with that of Martin vs. Hun- 
ter's Lessee, it is, historically, a part of M'CuUoch vs. 
Maryland and of Osbom vs. The Bank. The opinion 
of John Marshall in the Cohens case is one of the 
strongest and most enduring strands of that mighty 
cable woven by him to hold the American people 
together as a united and imperishable nation. 

Fortunate, indeed, for the Republic that Mar- 
shall's fateful pronouncement came forth at such a 
critical hour, even if technicalities were waived in 
bringing before him a case in which he could deliver 
that opinion. For, in conjunction with his exposition 
in M'Culloch vs. Maryland, it was the most power- 
ful answer that could be given, and from the source 
of greatest authority, to that defiance of the National 
Grovemment and to the threats of disunion then 
growing ever bolder and more vociferous. Marshall's 
utterances did not still those hostile voices, it is true, 
but they gave strength and courage to Nationalists 




344 



JOHNMABSHALL 






and furnished to the champions of the Union argu- 
ments of peculiar force as coming from the supreme 
tribunal of the Nation. 

Could John Marshall have seen into the future 
he would have beheld Abraham Lincoln expounding 
from the stump to the farmers of Illinois^ in 1858, 
the doctrines laid down by himself in 1819 and 
1821. 

Briefly stated, the facts in the case of Cohens V8. 
Virginia were as follows: The City of Washington 
was incorporated under an act of Congress ^ which, 
among other things, empowered the corporation to 
" authorize the drawing of lotteries for effecting any 
important improvements in the city which the ordi- 
nary funds or revenue thereof will not accomplish," 
to an amount not to exceed ten thousand dollars, the 
object first to be approved by the President.* Ac- 
cordingly a city ordinance was passed, creating " The 
National Lottery'' and authorizing it to sell tickets 
and conduct drawings. 

By an act of the Virginia Legislature • the pur- 
chase or sale within the State of lottery tickets, ex- 
cept those of lotteries authorized by the laws of 
Virginia, was forbidden under penalty of a fine of one 
hundred dollars for each offense. 

^ May S,lSOi,U.S, Statutes ai Large, This act, together with a sup^ 
plementary act (May 4, 1812» i&.)> » a Yivid portrayal of a phase 
of the life of the National Capital at that period. See especially Sec- 
tion VI. 

* Lotteries had long been a favorite method of raising funds for 
public purposes. As a member of the Virginia House of Delegates, Mar- 
shall had voted for many lottery biUs. (See vol. n, footnote 1, to 56, of 
this wOTk.) For decades after fht 0>nstitutioQ was adopted, lotteries 
were considered to be both moral and usef uL 

' Effective January 21, 1820. 



THREATS OF WAR S46 

On June 1, 1820, "P. J, & M. J. Cohen, . . being 
evil-disposed persons,'' violated the Virginia statute 
by selling to one William H. Jennings in the Borough 
of Norfolk two half and four quarter lottery tickets 
**of the National Lottery, to be drawn in the city 
of Washington, that being a lottery not authorized 
by the laws of this commonwealth," as the infor- 
mation of James Ninmio, the prosecuting attorney, 
declared.^ 

At the quarterly session of the Court of Norfolk, 
held September 2, 1820, the case came on for hearing 
before the Mayor, Recorder, and Aldermen of said 
borough and was decided upon an agreed case ""in 
lieu of a special verdict," which set forth the sale 
of the lottery tickets, the Virginia statute, the act of 
Congress mcorporating the City of Washington, and 
the fact that the National Lottery had been estab- 
lished under that act.^ The Norfolk Court found the 
defendants guilty and fined them in the sum of one 
hundred dollars. This paltry amount could not have 
paid one twentieth part of the fees which the eminent 
counsel who appeared for the Cohens would, ordi- 
narily, have charged.' The case was carried to the 
Supreme Coiui; on a writ of error. 

1 6 Wheaton, 266-67. < lb. 268-90. 

' William Pinkney was at this time probably the highest paid 
lawyer in America, five years before he argued the case of Cohens m. 
Virginia, his professional income was $21,000 annually (Story to White, 
Feb. 26, 1816, Story, i, 278), more than four times as much as Mar- 
shall ever received when leader of the Richmond bar (see vol. n, 201, 
ci this work). David B. Ogden, the other counsel for the G>hens, was 
one of the most prominent and successful lawyers of New York. See 
Warren, 808-04. 

Another interesting fact in this cdebrated case is that the Norfolk 
0>urt fined the Cohens the minimum allowed by the Virginia statute. 



% 



846 JOHN MASS 



4Li 



On behalf of Virginia, Senator James Barbour ci 
that State ^moved that the writ df error be dismissed, 
and upon this motion the main argumoits were made 
and Marshall's principal opinion ddivered. In con- 
cluding his argumait. Senator Barbour came near 
threatening secession, as he had done in the Senate: 
'^Nothing can so much aidanger it [the National 
Government] as exciting the hostility of the state 
governments. With them it b to determine how long 
this government shall aidure."' ' 

In opening for the C!ohens, David B. Ogden of 
New York denied that ^^there is any such thing as 
a sovereign state, independent of the Union/* The 
authority of the Supreme Court ^^ extends • • to all 
cases arising under the constitution, laws, and treaties 
of the United States/' • Cohens v^* Virginia was such 
a case. 

Upon the supremacy of the Supreme Court over 
State tribunals depended the very life of the Nation, 
declared William Pinkney, who appeared as the prin- 
cipal counsel for the Cohens. Give up the appellate 
jiuisdiction of National courts ^^from the decisions 
of the state tribunals'* and "every other branch of 
federal authority might as well be surrendered. To 
part with this, leaves the Union a mere league or 
confederacy." * Long, brilliantly, convincingly, did 

They oould have been fined at least $800, $100 for each offense — 
perhaps should have been fined that amount had the law been strictly 
observed. Indeed, the Virginia Act permitted a fine to the extent of 
''the whole sum of money proposed to be raised by such lottery." 
(6 Wheaton, 268.) 

^ Barbour declined a large fee offered him by the State. (Grigsby: 
Virginia Corwention qf 1829-90,) 

> 6 Wheaton, 844. ' U. 847. ^ A. 854. 



THREATS OF WAR 847 

Pinkn^ speak. The extreme State Rights argu- 
ments were, he asserted, "too wild and extrava- 
gant'* ^ to deserve consideration. 

Promptly Marshall delivered the opinion of the 
court on Barbour's motion to dismiss the writ of 
error. ThQ points made against the jurisdiction of 
the Supreme Coiu*t were, he said: " 1st. That a state 
is a defendant. 2d. That no writ of error lies from 
this court to a state court. Sd. • • that this court . . 
has no right to review the judgment of the state 
coiu*t, because neither the constitution nor any law 
of the United States has been violated by that 
judgment.** * 

The first two points "vitally . • aflFect the Union,*' 
declared the Chief Justice, who proceeds to answer 
the reasoning of the State judges when, in Hunter vs. 
Fairfax's Devisee, th^ hurled at the Supreme Court 
Virginia's defiance of National authority.' Marshall 
thus states the Virginia contentions: That the Con- 
stitution has ^* provided no tribunal for the final con- 
struction of itself, or of the laws or treaties of the 
nation; but that this power may be exercised . . by the 
courts of every state of the Union. That the con- 
stitution, laws, and treaties, may receive as many 
constructions as there are states; and that this is not 
a mischief, or, if a misdiief, is irremediable." ^ 

Why was the Constitution established? Because 
the "" American States, as well as the American peo- 
ple, have believed a dose and firm Union to be es- 
sential to their liberty and to their happiness. They 

^ 6 Wheaton, 875. For a better report of Pinknes^s speech, see 
Wheaton: PinkMy, 61d-16. 
* lb. $76. * See nipra, 157-58. ^ 6 Wheaton» 877. 



S48 JOHN MARSHALL 

have been taught by experiaice, that this Union 
cannot exist without a government for the whole; 
and they have been taught by the same experience 
that this government would be a mere shadow, that 
must disappoint all their hopes, unless invested with 
large portions of that sovereignty which belongs to 
independent states." ^ 

The very nature of the National Government 
leaves no doubt of its supremacy ^' in all cases where 
it is empowered to act"; that supremacy was also 
expressly declared in the Constitution itself, which 
plainly states that it, and laws and treaties made 
under it, ^* ^ shall be the supreme law of the land; and 
the judges in every state shall be bound thereby; 
anything in the constitution or laws of any state to 
the contrary notwithstanding.*" 

This supremacy of the National Government is a 
Constitutional "principle." And why were "ample 
powers" given to that Grovemmait? The Constitu- 
tion answers: "Li order to form a more perfect 
union, establish justice, ensure domestic tranquillity, 
provide for the conmion defense, promote the general 
welfare." ^ 

The " limitations on the sovereignty of the states " 
were made for the same reason that the "supreme 
government" of the Nation was endowed with its 
broad powers. In addition to express limitations on 
State "sovereignty" were nfany instances "where, 
perhaps, no other potoer is conferred on Congress than 
a conservative power to maintain the principles estab- 
lished in the constitution. The maintenance of these 

^ 6 Wheaton, 880. > /6. 881. 



< 



THREATS OP WAR 849 

principles in their purity, is certainly among the 
great duties of the government." ^ 

Marshall had been Chief Justice of the United 
States for twenty years, and these were the boldest 
and most extreme words that he had spoken diudng 
that period. Like all men of the first rank, Mar- 
shall met in a great way, and without attempt at 
compromise, a great issue that could not be com- 
promised — an issue which, everywhere, at that 
moment, was challenging the existence of the Na- 
tion. There must be no dodging, no hedging, no 
equivocation. Instead, there must be the broadest, 
frankest, bravest declaration of National powers that 
words could express. For this reason Marshall said 
that these powers might be exercised even as a result 
of "a conservative power " in Congress "to main- 
tain the principles established in the constitution/' 

The Judicial Department is an agency essential 
to the performance of the "great duty" to preserve 
those "principles." "It is authorized to decide all 
cases of every description, arising under the consti- 
tution or laws of the United States." Those cases < 
in which a State is a party are not excepted. There 
are cases where the National courts are given juris- 
diction solely because a State is a party, and re- 
gardless of the subject of the controversy; but in 
all cases involving the Constitution, laws, or treaties 
of the Nation, the National tribunals have jurisdic- 
tion, regardless of parties.^ 

"Principles" drawn from the very ^* nature of 
government** require that "the judicial power . . 

1 6 Wheaton, 882. (Italics the author's.) > lb. 882. 



8d0 JOHN MARSHALL 

must be oo-extensive with the legislative, and must 
be capable of deciding every judicial question which 
grows out of the constitution and laws " — not that 
^^it is fit that it should be so; but . • that this fit- 
ness*' is an aid to the right interpretation of the 
Constitution.^ 

What will be the result if Virginia's attitude is 
confirmed? Nothing less than the prostration of the 
National Government "at the feet erf every state in 
the Union. . . Each member will possess a veto on 
the will of the whole." Consider the country's ex- 
perience. Assumption ^ had been deemed uncon- 
stitutional by some States; opposition to excise 
taxes had produced the Whiskey Rebellion; ' other 
National statutes "have been questioned partially, 
while they were sui^orted by the great majority of 
the American people." ^ There can be no assurance 
that such divergent and antagonistic actions may 
not again be taken. State laws in conflict with Na- 
tional laws probably will be enforced by State 
judges, since they are subject to the same prejudices 
as are the State Legislatures — indeed, "in many 
states the judges are dependent for office and for 
salary on the will of the legislature." ^ 

The Constitution attaches first importance to the 
"indepaidence" of the Judiciary; can it have been 
intended to leave to State "tribunals, where this in- 
dependence may not exist," cases in which " a state 
shall prosecute an individual who claims the pro- 
tection of an act of Congress?" Marshall gives 

^ 6 l^eaton» 884-65. (Italics the author's.) 

' See vol. n, 66, of this work. 

• 6 Wheaton, 87. * lb. 885-86. » lb. 387. 



THREATS OF WAR 851 

examples of possible collisions between National 
and State authority^ in ordinary times, as well as in 
exceptional periods.^ Even to-day it is obvious that 
the Chief Justice was denouncing the threatoied 
resistance by State o£5dals to the tariff laws, a 
fact of commanding importance at the time when 
Marshall's opinion in Cohens vs. Virginia was de- 
livered. 

At this point he rises to the heights of august elo- 
quence: ^^ A constitution is framed for ages to come, 
and is designed to approach immortality as nearly 
as human institutions can approadi it. Its course 
cannot always be tranquil. It is exposed to storms 
and tempests, and its f ramers must be unwise states- 
men indeed, if they have not provided it . . with the 
means of self-preservation from the perils it may be 
destined to encounter. No government ought to be 
so defective in its organization as not to contain 
within itself the means of securinj; the execution of 
its own laws against other dangers than those which 
occur every day.*' 

Marshall is here replying to the Southern threats 
of secession, just as he rebuked the same spirit when 
displayed by his New England friends ten years 
earlier.^ Then turning to the conflict of courts, he 
remarks, as though the judicial collision is all that 
he has in mind: ""A government should repose on 
its own courts, rather than on others." ' 

He recalls the state of the country under the 
Confederation when requisitions on the States were 

1 6 Wheaton» 880-67. 

* See U.S. v$. Peters* supra, IS etisq. * 6 Wheaton» 887-88. 



852 JOHN MABSHALL 

"habitually disregarded," although they were "as 
constitutionally obligatory as the laws enacted by 
the present Congress." In view of this fact is it im- 
probable that the f ramers of the Constitution meant 
to give the Nation's courts the power of preserving 
that Constitution, and laws made in pursuance of 
it, "from all violation from every quarter, so far as 
judicial decisions can preserve them"? ^ 

Virginia contends liiat if States wish to destroy 
the National Government they can do so much 
more simply and easily than by judicial decision — 
"they have only not to elect senators, and it expires 
without a struggle"; and that therefore the de- 
structive effect on the Nation of decisions of State 
courts cannot be taken into account when construing 
the Constitution. 

To this Marshall makes answer: "Whenever hos- 
tility to the existing system shall become universal, 
it will be also irresistible. Tlie people made the 
constitution, and the people can unmake it. It is 
the creature of their own will, and lives only by their 
will. But this supreme and irresistible power to 
make or to unmake, resides only in the whole body 
of the people; not in any sub-division of them. The 
attempt of any of the parts to exercise it is usurpa- 
tion, and ought to be repelled by those to whom 
the people have delegated their power of repelling 
it. The acknowledged inability of the government, 
then, to sustain itself against the public will, and, 
by force or otherwise, to control the whole nation, 
is no sound argiunent in support of its constitutional 

^ 6 Wheaton» S88. 



<' 



THREATS OF WAR 358 

inability to preserve itself against a section of the 
nation acting in opposition to the general will." ^ 

This is a direct reply to the Southern arguments 
in the Missouri debate which secessionists were now 
using wherever those who opposed National laws 
and authority raised their voices. John Marshall is 
blazing the way for Abraham Lincoln. He speaks 
of a "section" instead of a State. The Nation, he 
says, may constitutionally preserve itself "against 
a section." And this right of the Nation rests on 
"principles" inherent in the Constitution. But in 
Cohens vs. Virginia no "section" was arrayed 
against the Nation — on the record there was noth- 
ing but a conflict of jurisdiction of courts, and this 
only by a strained construction of a municipal lot- 
tery ordinance into a National law-^ 

The Chief Justice is exerting to the utmost his tre- 
mendous powers, not to protect two furtive peddlers 
of lottery tickets, but to check a powerful move- i^^gt-^ 
ment that, if not arrested, must destroy the Repub-"* '^*^ » 
lie. Should that movement go forward thereafter, ^^ 
it must do so over every Constitutional obstacle 
which the Supreme Court of the Nation could throw 
in its way. In Cohens vs. Virginia, John Marshall 
stamped upon the brow of Localism the brand of il- 
legality. If this is not the true interpretation of his 
opinion in that case, all of the exalted language he 
used is mere verbiage. 

Marshall dwells on "the subordination of the 
parts to the whole." The one great motive for es- 
tablishing the National Judiciary "was the pres- 

^ 6 Wheaton, 889-90. 



354 JOHN MABSHALL 

ervation of the constitution and laws of the United 
States, so far as they can be preserved by judicial 
authority/' ^ 

Retiuning to the technical aspects of the contro- 
versy, Marshall points out that the Supreme Court 
plainly has appellate jurisdiction of the Cohens 
case: "K a state be a party, the jiuisdiction of this 
court is original; if the case arise under a [National] 
constitution or a [National] law, the jurisdiction is 
appellate. But a case to which a state is a parl7 
may arise under the constitution or a law of the 
United States." * That would mean a double juris- 
diction. Marshall, therefore, shows, at provoking 
length,^ that the appellate jurisdiction of the Supreme 
Court ^' in all cases arising under the constitution, 
laws, or treaties of the United States, was not 
arrested by the circumstance that a state was a 
party";* and in this way he explains that part of 
his opinion in Marbury vs. Madison, in which he 
reasoned .that Section 13 of the Ellsworth Judiciary 
Act was unconstitutional.^ 

Marshall examines the Eleventh Amendment 
and becomes, for a moment, the historian, a rdle in 
which he delighted. "The states were greatly in- 
debted" at the close of the Revolution; the Con- 
stitution was opposed because it was feared that 
their obligations would be collected in the National 
courts. This very thing happened. "The alarm 
was general; and, to quiet the apprehensions that 
were so extensively entertained, this amendment 

1 6 Wheaton, 390-01. * lb. 898. « lb. 894-404. 

* lb. 405. » See voL m, l«7-«8, of this work. 



THREATS OF WAR 355 

was . . adopted." But "its motive was not to main- 
tain the sovereignty of a state from the degrada- 
tion supposed to attend a compulsory appearance 
before the tribunal of the nation." It was to prevent 
creditors from suing a State — "no interest could be 
felt in so changing the relations between the whole and 
its parts, as to strip the government of the means 
of protecting, by the instrumentality of its courts, 
the constitution and laws from active violation." ^ 

With savage relish the Chief Justice attacks and 
demolishes the State Rights theory that the Su- 
preme Court cannot review the judgment of a 
State court "in any case." That theory, he says, 
"considers the federal judiciary as completely for- 
eign to that of a state; and as being no more con- 
nected with it, in any respect whatever, than the 
court of a foreign state." * But "the United States 
form, for many, and for most important piuposes, a 
single nation. . . In war, we are one people. In mak- 
ing peace, we are one people. In all commercial; 
r^ulations, we are one and the same people. In 
many other respects, the American people are one; 
and the government which is alone capable of con- 
trolling and managing their interests in all these 
respects, is the government of the Union. 

"It is their government, and in that character 
they have no other. America has chosen to be, in 
many respects, and to many purposes, a nation; and 
for all these purposes, her government is complete; •^ 
to all these objects, it is cgmgetgit. The people 
have declared, that in the exercise of all powers 

> 6 Wheaton, 400-07. ' lb. 418. 




S56 JOHN MARSHALL ' 

given for these objects it is supreme. It can, then, 
in effecting these objects, legitimately control all 
individuals or governments within the American 
territory. The Constitution and laws of a state, so 
far as they are repugnant to the Constitution and 
laws of the United States, are absolutely void. 

"These states are constituent parts of the United 
States. They are members of one great empire." ^ 
The National Court alone can decide all questions 
arising under the Constitution and laws of the Na« 
tion. "The uniform decisions of this court on the 
point now under consideration," he continues, "have 
been assented to, with a single exception,* by the 
courts of every state in the Union whose judgments 
have been revised." * 

As to the lottery ordinance of the City of Wash- 
ington, Congress has exclusive power to legislate 
for the District of Columbia and, in exercising that 
power, acts "as the legislature of the Union." The 
Constitution declares that it, and all laws made 
under it, constitute '* the supreme law of the land." * 
Laws for the government of Washington are, there- 
fore, parts of this "supreme law" and "bind the 
nation. * . Congress legislates, in the same forms, 
and in the same character, in virtue of powers of 
equal obligation, conferred in the same instrument, 
when exercising its exclusive powers of legislation, 
as well as when exercising those which are limited." * 

The Chief Justice gives examples of the exclusive 
powers of Congress, all of which are binding through- 

1 6 Wheaton, 413-14. » Fairfax's Devisee vs. Hunter, supra, 157-60. 
' 6 Wheaton, 4itt). « lb. 4124. * lb. 425-26. 



THREATS OF WAR 857 

out the Republic, "Congress is not a local legis- 
lature, but exercises this particular power [to legis- 
late for the District of Columbia], like all its other 
powers, in its high character, as the legislature of 
the Union." ^ The punishment of the Cohens for 
selling tickets of the National Lottery, created by 
the City of Washington under authority of an act 
of Congress, involves the construction of the Con- > 

stitution and of a National law. The Supreme Court, 
therefore, has jiuisdiction of the case, and the mo- 
tion to dismiss the writ of error is denied. 

Marshall having thus established the jurisdiction 
of the Supreme Court to hear and decide the case, 
it was argued "on the merits.'* Again David B. 
Ogden appeared for the Cohens and was joined by 
William Wirt as Attpmey-General. For Virginia 
Webster took the pliice of Senator Barbour. The 
argiunent was upon the true construction of the act 
of Congress authorizing the City of Washington to 
establish a lottery; and upon this Marshall delivered 
a second opinion, to the effect that the lottery 
ordinance was "only co-extensive with the city" 
and a purely local affair; that the court at Norfolk 
had a right to fine the Cohens for violating a law 
of Virginia; and that its judgment must be aflirmed.^ 

So ended, as far as the formal record goes, the 
famous case of Cohens V8. Virginia. On its merits it 
amounted to nothing; the practical result of the 
appeal was nothing; but it afforded John Marshall 
the opportunity to tell the Nation its duty in a 
crowning National emergency, 

1 6 Wheaton, 429. « lb. 445-47. 



S58 JOHN MARSHALL 

Intense was the excitement and violent the rag© 
in the anti-Nationalist camp when Marshall's opin- 
ion was published. Ritchie, in his paper, demanded 
that the Supreme Court should be abolished.^ The 
Virginia Republican organization struck instantly, 
Spencer Roane wielding its sword. The Enquirer 
published a series of five articles between May 25 
and June 8, 1821, inclusive, signed "Algernon Sid- 
ney,*' Roane's latest nom de plume. 

"The liberties and constitution of our country 
are . . deeply and vitally endangered by the fatal 
effects" of Marshall's opinion. "Appointed in one 
generation it [the Supreme Court] claims to make 
laws and constitutions for another." ^ The una- 
nimity of the court can be explained only on the 
ground of "a culpable apathy in the other judges, 
or a confidence not to be excused, in the principles 
and talents of their chief." Sidney literally wastes 
reams of paper in restating the State Rights argu- 
ments. He finds a malign satisfaction in calling the 
Constitution a "compact," a "league," a "treaty" 
between "sovereign governments." ' 

National judges have "no interest in the govern- 
ment or laws of any state but that of which they are 
citizens," asserts Sidney. "As to every other state 
but that, they are, completely, aliens and foreign- 
ers." * Virginia is as much a foreign nation as Rus- 
sia ^ so far as jurisdiction of the Supreme Court over 

* Ambler: Ritchie, 81. 

^ Enquirer, May ^, 1821, as quoted in Branch Hist. Papers, June^ 
1906, 78, 85. 

> Enquirer, May 25 and May 29, 1821, as quoted in ib. 89, 100. 

* Enquirer, May 29, 1821, as quoted in ib. 101. 
^ Enquirer, June 21, 1821, as quoted in ib. 110. 



THREATS OF WAR 359 

the judgments of State courts is concerned. Mar- 
shall's doctrine "is the blind and absolute despot- 
ism which exists in an army, or is exercised by a 
tyrant over his slaves/' ^ 

The apostate Republican Justices who concurred 
with Marshall are denounced, and with greater 
force, by reason of a tribute paid to the hated Chief 
Justice: "How else is it that they also go to all 
lengths with the ultra-federal leader who is at the 
head of their court? That leader is honorably dis- 
tinguished from you messieiu*s judges. He is true 
to his former politics. He has even pushed them to 
an extreme never until now anticipated. He must 
be equally delisted and surprised to find his Repub- 
Mean brothers going with him" — a remark as true 
as it was obvious. "How is it . . that they go with 
him, not only as to the results of his opinions, but 
as to all the points and positions contained in the 
most lengthy, artful and alarming opinions?'' Be- 
cause, answers Sidney, they are on the side of power 
and of "the government that feeds them." ^ 

What Marshall had said in the Virginia Constitu- 
tional Convention of 1788 refutes his opinions now. 
"Great principles then operated on his luminous 
mind, not hair-splitting quibbles and verbal criti- 
cisms." ^ The "artifices" of the Chief Justice render 
his opinions the more dangerous.* 

K the anger of John Marshall ever was more 
aroused than it was by Roane's assaults upon him, 
no evidence of the fact exists. Before the last number 

1 Branch Hist. Papers, June, 1906, 119. * lb, 12S-£4. 

' Enquirer, June 5, 1821, as quoted in Branch Hist. Papers, June, 
1906, 146-47. * lb. 182-88. 



C 



860 JOHN MABSHALL 

of the Algernon Sidney essays appeared, the Chief 
Justice confides his wrathful feelings to the devoted 
and sympathetic Story : " The opinion of the Supreme 
Court in the Lottery case has been assaulted with 
a degree of virulence transcending what has ap- 
peared on any former occasion. Algernon Sidney 
is written by the gentleman who is so much distin- 
guished for his feelings towards the Supreme Court, 
& if you have not an opportunity of seeing the En- 
quirer I will send it to you. 

"There are other minor gentry who seek to curry 
favor & get into office by adding their mite of abuse, 
but I think for coarseness & malignity of inven- 
tion Algernon Sidney siupasses all party writers 
who have ever made pretensions to any decency of 
character. There is on this subject no such thing 
as a free press in Virginia, and of consequence the 
calumnies and misrepresentations of this gentleman 
will remain uncontradicted & will by many be be- 
lieved to be true. He will be supposed to be the 
champion of state rights, instead of being what he 
really is, the champion of dismemberment." ^ 

When Roane's articles were finished, Marshall 
wrote Story: *'I send you the papers containing the 
essays of Algernon Sidney. Their coarseness & malig- 
nity would designate the author if he was not avowed. 
The argument, if it may be called one, is, I think, as 
weak as its language is violent & prolix. Two other 
gentlemen ^ have appeared in the papers on this sub- 

^ Marshall to Story, June 15, 181^1, Proceedings, Mass, Hist, Soe. 
2d Series, xiv, 827-28. 

' Marshall refers to three papers published in the Enquirer of May 
15 and 22, and June 22, the first two signed '"Somers" and the third 



THREATS OF WAR 861 

ject, one of them is deeply coneemed in pillaging the 
purchasers of the Fairfax estate in which goodly 
work he fears no other obstruction than what arises 

signed ''Fletcher of Saltoun/* It is impossible to discover who these 
writers were. Th^ essays, although vicious, are so dull as not to be 
worth the reading, though Jefferson thought them "luminous and 
striking.'* (Jefferson to Johnson, June 12, 1828, Works : Ford, xn, 
252, footnote.) 

"Somers,'* however, is compdled to admit the irresistible appeal of 
Marshall's personality. "Superior talents and address will forever 
attract the homage of inferior minds." {Enquirer, '^LBi,y 15, 1821.) 

"The Supreme court . . have rendered the constitution the sport 
of legal ingenuity. . . Its meaning is locked up from the profane vulgar, 
and distributed only by the high priests of the temple." (76. May 
22,1821.) 

** Fletcher of Saltoun" b intolerably verbose: "The victories . . 
of courts . . though bloodless, are generally decisive. . . The progress 
of the judiciary, though slow, is steady and untiring as the foot of 
time." 

The people act as though hypnotized, he laments — "the powerful 
mind of the chief justice has put forth its strength, and we are quiet 
as if touched by the wand of enchantment; — we fall prostrate before 
his genius as though we had looked upon the dazzling brightness of the 
shield of Astolfo. — Triumphant indeed has been this most powerful 
effort of his extraordinary mind. His followers exult — those who 
doubted, have yielded; even the faithful are found wavering, and the 
unconvinced can find no opening in his armor of defense." 

This writer points out Marshall's "abominable inconsistencies," 
but seems to be himself under the spell of the Chief Justice: "I men- 
tion not this to the disadvantage of the distinguished individual who 
has pronounced these conflicting opinions. No man can have a higher 
respect for the virtues of his character, or greater admiration of the 
powers of his mind." 

Alas for the change that time works upon the human intellect! 
Consider Marshall, the young man, and Marshall, the Chief Jus- 
tice! "How little did he, at that early day, contemplate the possi- 
bility of his carrying the construction of the constitution to an extent 
so far beyond even what he then renounced! " [nc.] 

Thereupon " Fletcher of Saltoun " plimges into an ocean of words 
concerning Hamilton's theories of government and Marshall's applica- 
tion of them. He annoimces this essay to be the first of a series; 
but, luckily for everybody, this first effort exhausted him. Apparently 
he, too, fell asleep under Marshall's "wand," for nothing more came 
from his drowsy pen. (76. June 22, 1821.) 



S62 JOHN MABSHALL 

from the appellate power of the Supreme Court, & 
the other is a hunter after office who hopes by his 
violent hostility to the Union, which in Virginia as- 
sumes the name of regard for state rights, & by his 
devotion to Algernon Sidney, to obtain one. In sup- 
port of the sound principles of the constitution & <rf 
the Union of the States, not a pen is drawn. In Vir- 
ginia the tendency of things verges rapidly to the 
destruction of the government & the re-establish- 
ment of a league of sovereign states. I look else- 
where for safety/' ^ 

Another of the "minor gentry*' of whom Marshall 
complained was William C, Jarvis, who in 1820 had 
written a book entitled "The Republicans,*' in which 
he joined in the hue and cry against Marshall be- 
cause of his opinion in M'Culloch vs. Maryland. 
Jarvis sent a copy of his book to Jefferson who, in 
acknowledging the receipt of it, once more spoke 
his mind upon the National Judiciary. To Jarvis's 
statement that the courts are " the ultimate arbiters 
of all constitutional questions," Jefferson objected. 

It was " a very dangerous doctrine indeed, and one 
which would place us under the despotism of an 
oligarchy," wrote the "Sage of Monticello." "The 
constitution has erected no such single tribunal, 
knowing that to whatever hands confided, with the 
corruptions of time and party, its members would 
become despots. . . If the legislature fails to pass" 
necessary laws — such as those for taking of the 
census, or the payment of judges; or even if "they 

1 Marshall to Story, July 18, 1821, Proceedings, Maas. HisL Soe. 
52d Series, XIV, 8129. . 



THREATS OP WAR 86S 

fail to meet in congress, the judges cannot issue their 
mandamus to them." 

So, concludes Jeflferson, if the President does not 
appoint officers to fOl vacancies, " the judges cannot 
force him." In fact, the judges "can issue their 
mandamus . . to no executive or legislative officer 
to enforce the fulfilment of their official duties, any 
more than the president or legislature may issue 
orders to the judges. . . When the legislature or ex- 
ecutive functionaries act unconstitutionally, they 
are responsible to the people in their elective 
capacity. The exemption of the judges from that is 
quite dangerous enough." ^ 

This letter by Jeflferson had just been made public, 
and Story, who appears to have read everything 
from the Greek classics to the current newspaper 
gossip, at once wrote Marshall. The Chief Justice 
replied that Jeflferson's view "rather grieves than 
surprizes" him. But he could not "describe the 
surprize & mortification" he felt when he learned 
that Madison agreed with Jeflferson "with respect 
to the judicial department. For M' Jeflferson's 
opinion as respects this department it is not difficult 
to assign the cause. He is among the most ambitious, 
& I suspect among the most unforgiving of men. 
His great power is over the mass of the people, & 
this power is chiefly acquired by professions of de- 
mocracy. Every check on the wild impulse of the 
moment is a check on his own power, & he is un- 
friendly to the source from which it flows. He looks 
of course with ill will at an independent judiciary. 

^ Jeffeison to Jarvis, Sept ftS* 181^, Works: Ford, xn, 161^-63. 



864 JOHN MABSHALL 

"That in a free country with a written constitu- 
tion any intelligent man should wish a dependent 
judiciary, or should think that the constitution is 
not a law for the court as well as for the legislature 
would astonish me, if I had not learnt from obser- 
vation that with many men the judgement is com- 
pletely controuled by the passions." ^ 

To Jefferson, Marshall ascribes Roane's attacks 
upon the Supreme Court: "There is some reason to 
believe that the essays written against the Supreme 
Court were, in a degree at least, stimulated by this 
gentleman, and that although the coarseness of the 
language belongs exclusively to the author, its acer- 
bity has been increased by his communications with 
the great Lama of the mountains. He may there- 
fore feel himself . . required to obtain its republica- 
tion in some place of distinction." * 

John E. Hall was at that time the publisher at Phil- 
adelphia of The Journal of American Jurisprudence. 
Jefferson had asked Hall to reprint Roane's articles, 
and Hall had told Story, who faithfully reported to 
Marshall. "I am a little surprized at the request 
which you say has been made to M'* Hall, although 
there is no reason for my being so. The settled 
hostility of the gentleman who has made that request 
to the judicial department will show itself in that & 
in every other form which he believes will conduce to 
its object. For this he has several motives, & it is not 
among the weakest that the department would never 
lend itself as a tool to work for his political power. • . 

1 Marshall to Story, July 18, 1821, Proceedings, Mom, HuL See. 
£d Series, xiv, 828-29. 
* Same to same, Sept. 18, 1821, i&. 880. 



THREATS OF WAft 365 

"What does M' Hall purpose to do?*' asks Mar- 
shall. " I do not suppose you would willmgly inter- 
fere so as to prevent his making the publication, al- 
though I really think it is in form & substance totally 
unfit to be placed in his law journal. I really think 
a proper reply to the request would be to say that 
no objection existed to the publication of any law 
argument against the opinion of the Supreme Court, 
but that the coarseness of its language, its personal 
& official abuse & its tedious prolixity constituted 
objections to the insertion of Algernon Sidney which 
were insuperable. If, however, MT Hall determines 
to comply with this request, I think he ought, unless 
he means to make himself a party militant, to say 
that he published that piece by particular request, 
& ought to subjoin the masterly answer of M' 
Wheaton. I shall wish to know what course IVT Hall 
will pursue." ^ 

Roane's attacks on Marshall did not appear in 
Hall's law magazine! 

Quitting such small, unworthy, and prideful con- 
siderations, Marshall rises for a moment to the great 
issue which he met so nobly in his opinions in 
M'Culloch vs. Maryland and in Cohens vs. Virginia. 
"A deep design," he writes Story, "to convert our 
government into a mere league of states has taken 
strong hold of a powerful & violent party in Vir- 
ginia. The attack upon the judiciary is in fact an at- 
tack upon the union. The judicial department is well 
imderstood to be that through which the govem- 

^ Marahall to Story, July 18, 1821, Proceedings^ Mass. Hist. Soc. 
id Series, xiv, 829-80. 



366 afOHN MARSHALL 

ment may be attacked most successfully, because it 
is without patrona^, & of course without power. 
And it is equally well understood that every sub- 
traction from its jurisdiction is a vital wound to 
the government itself. The attack upon it there- 
fore is a masked batteiy aimed at the government 
itself. 

"The whole attack, if not originating with MF 
JefiFerson, is obviously approved & guided by him. 
It is therefore formidable in other states as well as 
in this, & it behoves the friends of the union to be 
more on the alert than they have been. An eflfort will 
certainly be made to repeal the 25*^ sec. of the 
judicial act." ^ Marshall's indignation at Roane 
exhausted his limited vocabulary of resentment. 
Had he possessed Jeflferson*s resources of vitupera- 
tion, the literature of animosity would have been 
enriched by the language Marshall would have in- 
dulged in when the next Republican battery poured 
its volleys upon him. 

No sooner had Roane's artillery ceased to play 
upon Marshall and the Supreme Court than the 
roar of Taylor's heavy guns was again heard. In 
a powerful and brilliant book, called "Tyranny 
Unmasked," he directed his fire upon the newly pro- 
posed protective tariff, "this sport for capitalists 
and death for the rest of the nation." * The theory 
of the Chief Justice that there is a "supreme federal 
power" over the States is proved false by the pro- 
ceedings of the Constitutional Convention at Phila^ 



1 Marshall to Stoiy, July 18, 1821, Proceedings^ Masi. HuL Sac 
%dL Series, xiv, 880-81. 
* Taylor: Tyranny Unnuuked, 89. 



THREATS OF WASR 867 

delphia in 1787. Certain members then proposed to 
give the National Government a veto over the acts 
of State Govenmients.^ This proposal was imme- 
diately rejected. Yet to-day Marshall proclaims 
a National power, ** infinitely more objectionable,'* 
which asserts that the Supreme Court has "a neg- 
ative or restraining power over the State govern- 
ments." ^ 

A protective tariflF is only another monstrous child 
of Marshall's accursed Nationalism, that prolific 
mother of special favors for the few. By what rea- 
soning is a protective tariff made Constitutional? By 
the casuistry of John Marshall, that "present fash- 
ionable mode of construction, which considers the 
constitution as a lump of fine gold, a small portion 
of which is so malleable as to cover the whole mass. 
By this golden rule for manufacturing the constitu- 
tion, a particular power given to the Federal Govern- 
ment may be made to cover all the rights reserved 
to the people and the States; * a limited jurisdiction 
given to the Federal Courts is made to cover all the 
State Coiuts; * and a legislative power over ten miles 
square is malleated over the whole of the United 
States,^ as a single guinea may be beaten out so as 
to cover a whole house." • Such is the method by 
which a protective tariff is made Constitutional. 

For one hundred and twenty-one scintillant and 
learned pages Taylor attacks this latest creation of 
National " tjnranny." The whole Nationalist system 

'* ^ This was Madison's idea. See vol. i» 812, of this work. 

* Taylor: Tyranny Unmaahed, 88. * M'Culloch vs. Maryland. 
^ Martin va. Hunter's Lessee and Cohens vs. Virginia. 

* Cohens vs. Virginia. * Taylor: Tyranny Unmasked, 18i^-88. 



808 JOHN MARSHALL 

is "tyranny," wliich it is his privilege to "unmask,** 
and the duty of all true Americans to destroy. ^ Mar- 
shall's Constitutional doctrine "amounts to the in- 
sertion (rf the following article in the constitution: 
* Congress shall have power, with the assent of the 
Supreme Court, to exercise or usurp, and to pro- 
hibit the States from exercising, any or all of the 
powers reserved to the States, whenever they [Con- 
gress] shall deem it convenient, or for the general 
welfare/" * Such doctrines invite "civil war.** * 

By Marshall*s philosophy "the people are made 
the prey of exclusive privileges.** In short, under 
him the Supreme Court has become the agent of 
special interests.* " Cannot the Union subsist unless 
Congress and the Supreme Court shall make banks 
and lotteries?***^ 

Jeflferson eagerly read Roane*s essays and Tay- 
lor*s book and wrote concerning them : " The judiciary 
branch is the instrument which, working like grav- 
ity, without intermission, is to press us at last into 
one consolidated mass. Against this I know no one 
who, equally with Judge Roane himself, possesses 
the power and the courage to make resistance; and 
to him I look, and have long looked, as our strongest 
bulwark.** 

At this point JefiFerson declares for armed resist- 
ance to the Nation in even stronger terms than those 
used by Roane or Taylor: "If Congress fails to 
shield the States from dangers so palpable and so im- 

* Ta,y\oT: Tyranny Unmasked, l$Sr^i. Taylor was the first to state 
fully most of the arguments since used by the opponents of protec- 
tive tariffs. 

« lb. 260. » lb. «85. * lb. 805. • lb. 841. 



THREATS OF WAR 369 

minent, the States must shield themselves, and meet 
the invader foot to foot. • • This is/ abeady half done 
by Colonel Taylor's book*' which "is the most eflfec- 
tual retraction of our government to its original prin- 
ciples which has ever yet been sent by heaven to our 
aid. Every State in the Union should give a copy to 
every member they elect, as a standing instruction, 
and ours should set the example." ^ 

Until his death the aged politician raged continu- 
ously, except in one instance,^ at Marshall and the 
Supreme Court because of such opinions and de- 
cisions as those in the Bank and Lottery cases. He 
writes Justice Johnson that he "considered . . ma- 
turely " Roane's attacks on the doctrines of Cohens 
vs. Virginia and they appeared to him " to pulverize 
every word which had been delivered by Judge Mar- 
shall, of the extra-judicial part of his opinion." If 
Roane "can be answered, I surrender human reason 
as a vain and useless faculty, given to bewilder, and 
not to guide us. • • This practice of Judge Marshall, 
of travelling out of his case to prescribe what the law 

» Jefferson to Thweat, Jan. 19, 1821, Works: Ford, xn, 196-97. 

Wirt, though a BepuWcan, asserted that ''the functions to be per- 
formed by the Supreme Court • . are among the most difficult and 
perilous which are to be performed under the G>nstitution. They 
demand the loftiest range of talents and learning and a soul of Roman 
purity and firmness. The questions which come before them fre- 
quenUy involve the fate of the G>nstitution, the happiness of the 
whole nation." (Wirt to Monroe, May 5, 1823, Kennedy, n, 158.) 

Wirt, in this letter, was urging the appointment of Kent to the 
Supreme Bench, notwithstanding the Federalism of the New York 
Clmncellor. ''Federal politics are no way dangerous on the bench of 
the Supreme Court," adds Wirt (lb. 155.) 

' His strange failure to come to Roane's support in the fight, over 
the Judiciary amendments to the Constitution, in the Virginia Legis- 
lature during the session of 1821-22. (See irrfra, 871.) 



\ 



870 JOHN MARSHALL 

would be in a moot case not before the court, is very 
irregular and censurable/* ^ 

Again Jefferson writes that, above all other offi- 
cials, those who most need restraint from usurping 
legislative powers are "the judges of what is com- 
monly called our General Government, but what I 
call our Foreign department. . . A few such doc- 
trinal decisions, as barefaced as that of the Cohens,** 
may so arouse certain powerful States as to check the 
march of Nationalism. The Supreme Court '^has 
proved that the power of declaring what the law is, 
ad libitum i by sapping and mining, slily and without 
alarm, the foundations of the Constitution, can do 
what open force would not dare to attempt.** ^ 

So it came to pass that John Marshall and the 
Supreme Court became a center about which swirled 
the forces of a fast-gathering storm that raged with 
increasing fury until its thunders were the roar of 
cannon, its lightning the flashes of battle. Broadly 
speaking, slavery and free trade. State banking and 
debtors* relief laws were arraigned on the side of 
Localism; while slavery restriction, national bank- j 

ing, a protective tariff, and security of contract were 
marshaled beneath the banner of Nationalism. It 
was an assemblage of forces as incongruous as hu- ' 

man nature itself?^ tn^-^^^Oo^^^AOA^ a. .^a^^ ^^^^^^S^r^ 

The Republican protagonists of Localism did not 
content themselves with the writing of enraged^let- 
ters or the pubUcation of flaming articles and books. 

^ Jefferson to Johnson, June 11^ 1828, Woths: Ford, xn, footnote to 

^ Jefferson to Livingston, March 25, 1825, Hunt: Lmngsiont 295- 
97. 



ii^ 



THRJEATS OF WAR 871' 

They were too angry thus to limit their attacks, 
and they were poli^'fdans of too much experience 
not to crystallize an aroused public sentiment. On 
December 12, 1821, Senator Richard M. Johnson 
of Kentucky, who later was honored by his party 
with the Vice-Presidency, oflfered an amendment to 
the Constitution that the Senate be given appellate 
jurisdiction in all cases where the Constitution or 
laws of a State were questioned and the State de- 
sired to defend them; and in all cases "where the 
judicial power of the United States shall be so con- 
strued as to extend to any case . . arising under" 
the National Constitution, laws, or treaties.^ 

Cooperating with Johnson in the National Senate, 
Roane in Virginia, when the Legislature of that State 
met, prepared amendments to the National Con- 
stitution which, had they been adopted by the States, 
would have destroyed the Supreme Court. He de- 
clares that he takes this step **with a view to aid** 
the Congressional antagonists of Nationalism and 
the Supreme Court, **or rather to lead, on this im- 
portant subject." The amendments **will be copied 
by another hand & circulated among the members. 
I would not wish to injure the-great Cause, by being 
known as the author. My name would damn them, 
as I believe, nay hope, with the Tories*^ Roane 
asks his correspondent to **jog your Chesterfield 
Delegates . . and other good republicans," and com- 
plains that ^^JefiFerson & Madison hang back too 
much, in this great Crisis." * 

^ Anruda, ITth Cong. 1st Sess. 68. 

* Boane to Thweat, Dec. U, 18£1, J^erson MSS. lib. Cong. 



872 JOHN MABSHALLv 

On Monday, January 14, 1822, Senator Johnson 
took the floor in support of his proposition to reduce 
the power of the Supreme Court. "The conflicts be- 
tween the Federal judiciary and the sovereignty of 
the States," he said, "are become so frequent and 
alanning, that the public safety '^ demands a remedy. 
"The Federal judiciary has assumed a guardianship 
over the States, even to the controlling of their 
peculiar municipal regulations/' ^ The "basis of en- 
croachment*' is Marshall's "doctrine of Federal su- 
premacy . . established by a judicial tribunal which 
knows no change. Its decisions are predicated upon 
the principle of perfection, and assume the char- 
acter of immutability. Like the laws of the Medes 
and Persians, they live forever, and operate through 
all time." What shall be done? An appeal to the 
Senate "will be not only harmless, but beneficial." 
It will quiet "needless alarms . . restore . . confi- 
dence . . preserve . . harmony." There is pressing 
need to tranquillize the public mind concerning the 
National Judiciary,* a department of the govern- 
ment which is a denial of our whole democratic 
theory. "Some tribunal should be established, re- 
sponsible to the people, to correct their [the Judges'] 
aberrations." 

Why should not the National Judiciary be made 
answerable to the people? No fair-minded man can 
deny that the judges exercise legislative power. "K 
a judge can repeal a law of Congress, by declaring 
it imconstitutional, is not this the exercise of polit- 
cal power? If he can declare the laws of a State 

1 Annah, 17th Cong. 1st Sess. 60-70. « lb. 71-7«. 



THREATS OP WAR 378 

unconstitutional and void, and, in one moment, sub- 
vert the deliberate policy of that State for twenty- 
four years, as in Kentucky, aflfecting its whole landed 
property, . . is not this the exercise of political 
power? All this they have done, and no earthly 
power can investigate or revoke their decisions/'^ 
The Constitution gives the National Judiciary no 
such power — that instrument ** is as silent as death 
upon the subject." ^ 

How absurd is the entire theory of judicial inde- 
pendence ! Why should not Congress as properly de- 
clare the decisions of the National courts unconstitu- 
tional as that the coiui^ should do the same thing to 

acts of Congress or laws of States? Think of it as a 
matter of plain common sense — ** forty-eight Sen- 
ators, one hundred and eighty-eight Representatives, 
and the President of the United States, all sworn to 
maintain the Constitution, have concurred in the 
sentiment that the measure is strictly conformable 
to it. Seven judges, irresponsible to any earthly 
tribimal for their decisions, revise the measure, de- 
clare it unconstitutional, and eflfectually destroy its 
operation. Whose opinion shall prevail? that of the 
legislators and President, or that of the Court?*' * 
The Supreme Court, too, has gently exercised the 
principle of judicial supervision over acts of Con- 
gress; has adjudged that Congress has a free hand 
in choosing means to carry out powers expressly 
granted to that body. But consider the conduct of 
the Supreme Court toward the States: "An irre- 
sponsible judiciary " has ruthlessly struck down State 

» Annals, 17th Cong. Ist Sess. 74-75. « lb. 79. » lb. 79-80. 



f^ 



874 JOHN MARSHALL 

law after State law; has repeatedly destroyed the de- 
cisions of State courts. Look at Marshall's opinions 
in M'Culloch vs. Maryland, in the Dartmouth Col- 
lie case, in United States vs. Peters, in Sturges vs. 
Crowninshield, in Cohens vs. Virginia — smallest, 
but perhaps worst of all, in Wilson vs. New Jersey. 
The same principle runs through all these pronounce- 
ments ; — the States are nothing, the Nation every- 
thing.^ 

Webster, in the House, heard of Johnson's speech 
and promptly wrote Story: "Mr. Johnson of Ken- 
tucky . . has dealt, they say, pretty freely with the 
supreme court. Dartmouth College, Sturges and 
Crowninshield, et cetera, have all been demolished. 
To-morrow he is to pull to pieces the case of the 
Kentucky betterment law. Then Governor [Senator] 
Barber [Barbour] is to annihilate Cohens v. Virginia. 
So things go; but I see less reality in all this smoke 
than I thought I should, before I came here." * 

It would have been wiser for Webster to have lis- 
tened carefully to Johnson's powerful address than to 
have sneered at it on hearsay, for it was as able as it 
was brave; and, erroneous though it was, it stated 
most of the arguments advanced before or since 
against the supervisory power of the National Judi- 
ciary over the enactments of State Legislatures and 
the decisions of State courts. 

When the Kentucky Senator resumed his speedi 
the following day, he drove home his strongest 
weapon — an instance of judicial interference with 

1 Annals, llXh Cong. 1st Sess. 84-W. 

* Webster to Stwy, Jan. 14, 18««, Prw. Ccrrei.: Webster, i, 8«0. 



THREATS OF WAR 875 

State laws which, indeed, at first glance appeared to 
have been arbitrary, autocratic, and unjust. The 
agreement between Virginia and Kentucky by which 
the latter was separated from the parent Common- 
wealth provided that "all private rights and inter- 
ests of lands" in Kentucky "derived from the laws of 
Virginia, shall remain valid • • and shall be deter- 
mined by the laws now existing'* in Virginia.^ 

In 1797 the Kentucky Legislature enacted that per- 
sons occupying lands in that State who could show a 
dear and connected title could not, without notice of 
any adverse title, upon eviction by the possessor of a 
superior title, be held liable for rents and profits dur- 
ing such occupancy.* Moreover, all permanent im- 
provements made on the land must, in case of evic- 
tion, be deducted from the value of the land and 
judgment therefor rendered in favor of the innocent 
occupant and against the successful claimant. On 
January 31, 1812, this "occupying claimant** law, 
as it was called, was further strengthened by a stat- 
ute providing that any person " seating and improv- 
ing** lands in Kentucky, believing them "to be his 
own** because of a claim founded on public record, 
should be paid for such seating and improvements by 
any person who thereafter was adjudged to be the 
lawful owner of the lands. 

Against one such occupant, Richard Biddle, the 
heirs of a certain John Green brought suit in the 

1 Ordinance of Separation, 1789. 

* Act of Feb. 27, Latoa cf Kentucky, 1797: Littell, 641-45. See also 
Act of Feb. 28 (ib, 652-71), apparently on a different subject; and, 
especially. Act of March 1 (t6. 682-87). Compare Act of 1796 (ib. 
892-420); and Act of Dec. 19, 1796 (ib. 554-57). See also in i6. gen- 
eral land laws. 



876 JOHN MABSHALL 

United States Court for the District of Kentucky, 
and the case was certified to the Supreme Court on 
a division of opinion of the judges. The case was 
argued and decided at the same term at which 
Marshall delivered his opinion in Cohens vs. Virginia. 
Story delivered the unanimous opinion of the court: 
that the Kentucky "occupying claimant'* laws vio- 
lated the separation "compact'* between Virginia 
and Kentucky, because, " by the general prindplea of 
law, and from the necessity of the case, titles to real 
estate can be determined only by the laws of the 
state imder which they were acquired." ^ Unfor- 
timately Story did not specifically base the court's 
decision on the contract clause of the Constitution, 
but left this vital point to inference. 

Henry Clay, "as amicus curke" moved for a re- 
hearing because the rights of numerous occupants of 
Kentucky lands "would be irrevocably determined 
by this decision," and because Biddle had permitted 
the case " to be brought to a hearing without appear- 
ing by his counsel, and without any argument on 
that side of the question." ^ In eflfect, Clay thus in- 
timated that the case was feigned. The motion was 
granted and Green vs. Biddle was awaiting reargu- 
ment when Senator Johnson made his attack on the 
National Judiciary. 

Johnson minutely examined the historical reasons 
for including the contract clause in the National 
Constitution, " in order to understand perfectly well 
the mystical influence" of that provision.* It never 

1 8 Wheaton, 11-12. (Italics the author's.) « lb. 18. 

* Annals, 17th Cong. 1st Sess. 96-98. 



THREATS OF WAR 377 

• 

was intended to affect such legislation as the Ken- 
tucky land system. The intent and meaning of the 
contract clause is, that " you shall not declare to-day 
that contract void, . . which was made yesterday 
under the sanction of law/* ^ Does this simple rule 
of morality justify the National courts in annulling 
measures of public policy "which the people have 
solemnly dedared to be expedient"? ^ TTie deci- 
sion of the Supreme Court in Green vs. Biddle, said 
Johnson, "prostrates the deliberate** course which 
Kentucky has pursued for almost a quarter of a 
century, "and affects its whole landed interest. 
The effect is to legislate for the people; to regu- 
late the interior policy of that community, and to 
establish their municipal code as to real estate.** * 

K such judicial supremacy prevails, the courts can 
"establish systems of policy by judicial decision.*' 
What is this but despotism? "I see no difference, 
whether you take this power from the people and 
give it to your judges, who are in office for life, or 
grant it to a King for life.** * 

The time is overripe, asserts Johnson, to check 
judicial usurpation — already the National Judi- 
ciary has struck down laws of eight States.* The 
career of this judicial oligarchy must be ended. " The 

^ Annals, 17th Cong. Ist Sess. 102. 

« 76. lOS. » lb. 104. * lb. 108. 

' Georgia, Fletcher vs. Peek (see vol. m, chap, x, of this work); 
Pennsylvania, U.S. vs. Peters (supra, chap, i); New Jersey, New Jer- 
aey vs. Wilson (supra, chap, v); New Hampshire, Dartmouth Col- 
lie 9^. Woodward (supra, chap, v); New York, Sturges vs. Crownin- 
shield (supra, chap, iv); Maryland, IkTCulloch v^. Maryland (supra, 
chap, vi) ; Virginia, Cohens vs. Virginia (supra, chap, vn) ; Kentucky, 
Green vs. Biddle (supra, this chapter). 



878 JOHN MABSHALL 

security of our liberties demands it." Let the juris- 
diction of National courts be specifically limited; or 
let National judges be subject to removal upon ad- 
dress of both Houses of Congress; or let their com- 
missions be vacated "after a limited term of service'* ; 
or, finally, "vest a controlling power in the Senate . . 
or some other body who shall be responsible to the 
elective franchise." ^ 

The Kentucky Le^lature backed its fearless 
Senator; * but the Virginia Assembly weakened at 
the end. Most of the Kentucky land titles, which the 
Supreme Court's decision had protected as against 
the "occupying claimants, " were, of course, held 
by Virginians or their assignees. Virginia conserva- 
tives, too, were beginning to realize the wisdom of 
Marshall's Nationalist policy as it affected all their 
interests, except slavery and tariff taxation; and 
these men were becoming hesitant about further 
attacks on the Supreme Court. Doubtless, also, 
Marshall's friends were active among the members 
of the Legislature. Roane understood the situation 
when he begged friends to "jog up" the apathetic, 
and bemoaned the quiescence of Jefferson and Mad- 
ison. His proposed amendments were lost, though 
by a very dose vote.' 

1 Annds, 17th Cong. Ist Sess. IIS. 

> Niles, xzi, 404. 

* lb. The resoluticms, offered by John Wayles Eppes, Jefferson's 
son-in-law, "mHructed" Virginia's Senators and requested her Repre* 
sentatives in Congress to ''procure" these amendments to the Con- 
stitution: 

1. The judicial power shaU not ext^d to any power *'not expressly 
granted . . or abadtUely necessary for carrying the same into execu- 
tion." 

%• Neither the National Government nor any department therecrf 



THREATS OF WAR 379 

Nevertheless, the Virgmia Localists carried the 
fight to the floors of Congress. On April 26, 1822, 
Andrew Stevenson, one of Roane's lieutenants and 
now a member of the National House, demanded the 
repeal of Section 25 of the Ellsworth Judiciary Act 
which gave the Supreme Court appellate jurisdic- 
tion over the State courts. But Stevenson was un- 
wontedly mild. He offered his resolution ^* in a spirit 
of peace and forbearance. . . It was . . due to those 
States, in which the subject has been lately so much 
agitated, as wdl as to the nation, to have it • . 
decided." ' 

As soon as Congress convened in the winter of 
1823, Senator Johnson renewed the combat; but he 
had become feeble, even apologetic. He did not 
mean to reflect '* upon the conduct of the judges, for 
he believed them to be highly enlightened and intelli- 
gent." Nevertheless, their life tenure and irrespon- 
sibility required that some limit should be fixed to 
their powers. So he proposed that the membership 
of the Supreme Court be increased to ten, and that 
at least seven Justices should concur in any opinion 
involving the validity of National or State laws.* 

diall have power to bind '^ooiieiiamly " the States in conflicts betweoi 
Nation and State. 

5. The judicial power of the Nation shall never include **any case 
in which a State shall be a party," except controversies between States; 
nor cases involving the rights of a State ''to which such a state shall 
ask to become a party.** 

4« No appeal to any National court shall be had from the decisions 
of any State court. 

6, Laws applying to the District of Columbia or the Territories, 
which conflict with State laws, shall not be enforceable within State 
jurisdiction. (Niles, xxi, 404.) 

1 Annals, 17th Cong. Ist Sess. 1682. 
< lb., 18th Cong. 1st Sess. ftS. 



880 JOHN MABSHALL 

^ Four months later. Senator Martin Van Buren 
ported from the Judiciary Committee, a bill **that 
no law of any of the States shall be rendered invalid, 
without the concurrence of at least five Judges of the 
Supreme Court; their opinions to be separately ex- 
pressed/* * But the friends of the Judiciary easily 
overcame the innovators; the bill was laid on the 
table;' and for that session the assault on the Su- 
preme Court was checked. At the next session, 
however, Kentucky again brought the matter before 
Congress. Charles A. Wickliflfe, a Representative 
from that State, proposed that writs of error from 
the Supreme Court be "awarded to either party," 
regardless of the decision of the Supreme Court of 
any State.' Webster, on the Judiciary Committee, 
killed Wickliflfe's resolution with hardly a wave of 
his hand.^ 

After a reargument of Green vs. Biddle, lasting an 
entire week,^ the Supreme Court stood to its guns 
and again held the Kentucky land laws uncon- 
stitutional. Yet so grave was the crisis that the 
decision was not handed down for a whole year. 
This time the opinion of the court was delivered on 
February 27, 1823, by Bushrod Washington, who 
held that the contract clause of the National Con- 
stitution was violated, but plainly considered that 
"the principles of law and reason'* • were </ more 
importance in this case than the Constitutional pro- 

^ Anrwia, 18th Cong. 1st Sess. SSG. * lb. 419. > Ih. 915. 

^ Webster, from the Judiciaiy Committee, which he seems to have 
dominated* merely reported that Widdiffe's proposed reform was ''not 
expedient." [ArmaUy 18th Cong. 1st Sess. 1291.) 

• March 7 to 13» 1822» indusive. • 8 Wheaton» 75. 



THREATS OF WAR 881 

vision. Washington's opinion displays the alarm of 
the Supreme Court at the assaults upon it: "We 
hold ourselves answerable to God, our consciences 
and our country, to decide this question according 
to the dictates of our best judgment, be the conse- 
quences of the decision what they may/' ^ 

Kentucky promptly replied. In his Message to 
the Legislature, Governor John Adair declared that 
the KentuclQr decisions of the Supreme Court struck 
at "the right of the people to govern themselves.** 
The National authority can undoubtedly employ 
force to "put down insurrection,'* but "that . . day, 
when the government shall be compelled to resort 
to the bayonet to compel a state to submit to its 
laws, will not long precede an event of all others to 
be deprecated. '* * 

One of Marshall's numerous Kentucky kinsmen^ 
who was an active member of the Legislature^ 
stoutly protested against any attack on the Supreme 
Court; nevertheless he offered a resolution recit- 
ing the grievances of the State and proposing an ad- 
dress "to the supreme coiul; of the United States, 
in full session," against the decision and praying for 
" its total and definitive reversal." * What ! exclaimed 
John Rowan, another member of the Legislature, 
shall Kentucky again petition "like a degraded prov- 

^ 8 Wheaton, 93. Johnson dissented. (lb. 94-107.) Todd of Ken- 
tucky was absent because of illness, a circumstance that greatly 
worried Story, who wrote the sick Justice: "We have missed you 
exceedingly during the term and particularly in the Kentucky causes. 
. • We have had • • tough business" and "wanted yoiu* firm vote 
on many occasions." (Story to Todd» March 24, 1812S, Story, i, 

* NQes, XXV, 203-05. < lb. 206. 



S82 JOHN MARSHALL 

ince of Rome*7 * He proposed counter-resolutions 
that the Legislature "do . . most solemnly pro- 
test • . against the erroneous^ injiu*ious, and de- 
grading doctrines of the opinion . . in . . Green and 
Biddle." * When modified, Rowan's resolutions, 
one of which hinted at forcible resistance to the 
mandate of the Supreme Coiui;, passed by heavy 
majorities.' Later resolutions openly threatened to 
" call forth the physical power of the state, to resist 
the execution of the decisions of the court,** which 
were "considered erroneous and unconstitutional/* * 
In the same year that the Supreme Coiul; decided 
the Kentucky land case. Justice Johnson aroused 
South Carolina by a decision rendered in the United 
States District Court of that State. One Henry 
Elkison, a negro sailor and a British subject, was 
taken by the sheriff of the Charleston district, from 
the British ship Homer; and imprisoned under a 
South Carolina law which directed the arrest and 
confinement of any free negro on board any ship 
entering the ports of that State, the negro to be 
released only when the vessel departed.* Johnson 
wrathfully declared that the "unconstitutionality 
of the law . • will not bear argument** — nobody 
denied that it could not be executed "without 
clashing with the general powers of the United 
States, to regulate commerce.** Thereupon, one of 
the counsel for the State said that the statute must 
and would be enforced; and " that if a dissolution [sic] 
of the union must be the alternative he was ready 

* NUes, XXV, 206. » lb. 261. « lb. 275-76. < lb. xxix, 228-29. 

* lb. xxT, 12;and see Elkison w. Ddiessdine, 8 Federal Caeee, 498. 



THREATS OF WAR 883 

to meet it*' — an assertion which angered Johnson 
who deUvered an opinion almost as strong in its 
Nationalism as those of Marshall.^ 

Throughout South Carolina and other slavehold- 
ing States, the action of Justice Johnson inflamed 
the passions of the white population. **A high state 
of excitement exists,'' chronicles Niles.* Marshall, 
of course, heard of the outcry against his associate 
and promptly wrote Story: "Our brother Johnson, I 
perceive, has himg himself on a democratic snag in 
a hedge composed entirely of thorny state rights in 
South Carolina. . . You . . could scarcely have sup- 
posed that it [Johnson's opinion] would have excited 
so much irritation as it seems to have produced. 
The subject is one of much feeling in the South. . . 
The decision has been considered as another act 
of judicial usurpation; but the sentiment has been 
avowed that if this be the constitution, it is better to 
break that instrument than submit to the principle. 
• . Fuel is continually adding to the fire at which 
exaltSes are about to roast the judicial department." ^ 

The Governor and Legislature of South Carolina 
fiercely maintained the law of the State — it was to 
them a matter of "self-preservation.*' Niles was 
distressingly alarmed. He thought that the collision 
of South Carolina with the National Judiciary 
threatened to disturb the harmony of the Republic 
as much as the Missouri question had done.^ 

^ Niles» XXV, lS-16. * lb. 12; and see especially i&. xxvn, 242-^. 

> Marshall to Story, Sept. 26, 1823, Story MSS. Mass. Hist Soc. 

* Niles, xxvn, 242. The Senate of South Carolina resolved by a 
vote of six to one that the duty of the State to ''guard against insub- 
ordination or insurrection among our^ colored population • • is para- 



884 JOHN MARSHALL 

This, then, was the situation when the Ohio Bank 
case reached the Supreme Court. ^ Seven States were 
y formally in revolt against the National Judiciary, 
and others were hostile. Moreover, the protective 
Tariff of 1824 was under debate in Congress; its 
passage was certain, while in the South ever-growing 
bitterness was manifesting itself toward this plunder- 
ing device of Nationalism as John Taylor branded 
it. In the House Southern members gave warning 
that the law might be forcibly resisted.* The first 
hints of Nullification were heard. Time and again 
Marshall's Nationalist construction of the Constitu- 
tion was condemned. To the application of his the- 
ory of government was laid most of the abuses of 
which the South complained ; most of the dangers 
the South apprehended. 

Thus again stands out the alliance of the various 
forces of Localism — slavery, State banking, debt- 
ors' relief laws, opposition to protective tariffs — 
which confronted the Supreme Court with threats 
of physical resistance to its decrees and with the 
ability to carry out those threats. 

mount to all 2ato9, all trwiiBi^ all oonsHtidiona • . and will never, by 
this state, be renounced, compromised, controlled or participated with 
any power whatever." 

Johnson's decision is viewed as '*an unconstitutional interference'* 
with South Carolina's slave system, and the State ''will, on this sub- 
ject, . . make common cause with . . other southern states similarly 
circumstanced in this respect." (Niles, xxvn, 264.) The House re- 
jected the savage language of the Senate and adopted resolutions 
moderately worded, but expressing the same determination. (lb. 292.) 

^ For the facts in Osbom vs. The Bank of the United States, see 
supra, 828-829. 

' See, for instance, speech of John Carter of South Carolina. (i4n- 
nals, IBth Cong. 1st Sess. 2097 ; and upon this subject, generally, 
see i^fra, chap, x.) 



THREATS OF WAR 885 

Two arguments were had in Osbom vs. The Bank 
of the United States, the first by Charles Hammond 
and by Henry Clay for the Bank; ^ the second by 
John C. Wright, Governor Ethan Allen Brown, and 
Robert Goodloe Harper, for Ohio, and by Clay, 
Webster, and John Sergeant for the Bank. Argu- 
ments on both sides were notable, but little was 
presented that was new. Coimsel for Ohio insisted 
that the court had no ]iu*isdiction, since the State 
was the real party against which the proceedings in 
the United States Coiul; in Ohio were had. Clay 
made the point that the Ohio tax, imlike that of 
Maryland, '^was a confiscation, and not a tax. . . 
Is it possible," he asked, "that . . the law of the 
whole may be defeated . . by a single part? " * 

On March 19, 1824, Marshall delivered the opin- 
ion of the court. All well-organized governments, he 
begins, "must possess, within themselves, themeans 
of expounding, as well as enforcing, their own 
laws.** The makers of the Constitution kept con- 
stantly in view this great political principle. The 
Judiciary Article "enables the judicial department 
to receive jurisdiction to the full extent of the con- 
stitution, laws, and treaties of the United States. . • 
That power is capable of acting only when the sub- 
ject is submitted to it by a party who asserts his 
rights in the form prescribed by law. It then be- 
comes a case " over which the Constitution gives 
jurisdiction to the National courts. "The suit of 
The Bank of the United States v. Osbom el (d./isa. 

^ Who appeared for Ohio on the first argument is not disclosed by 
the records. 

* 9 Wheaton, 795-96. 



886 JOHN MARSHALL 

case, and the question is, whether it arises under a 
law of the United States/* ^ 

The fact that other questions are involved does 
not "withdraw a case'* from the jurisdiction of the 
National courts; otherwise, "almost every case, al- 
though involving the construction of a [National] law, 
would be withdrawn ; and a clause in the constitution, 
relating to a subject of vital importance to the gov- 
ernment and expressed in the most comprehensive 
terms, would be construed to mean almost nothing.'* 
It is true that the Constitution specifies the cases 
in which the Supreme Court shall have original 
jurisdiction, but nowhere in the Constitution is 
there any "prohibition" against Congress giving 
the inferior National courts original jurisdiction; 
such a restriction is not "insinuated." Congress, 
then, can give the National Circuit Courts "original 
jiuisdiction, in any case to which the appellate juris- 
diction [of the Supreme Court] extends." * 
At this particular period of our history this was, 
^ indeed, a tremendous expansion of the power of 
Congress and the National Judiciary. Marshall 
flatly declares that Congress can invest the inferior 
\ National courts with any jurisdiction whatsoever 
which the Constitution does not prohibit. It makes 
V _A^ft Pother stage in the development of his Constitu- 
^^'•'^^ tional principle that the National Government not 

SftljfilM^ has all powers expressly granted, but also all 

hji^/^^ powers not expressly prohibited. For that is just 
^ 0td9!** what Marshall's reasoning amounts to during these 
ioAv^iJ^'^ crucial years. 

^ 9 Wheaton, 818-19. * lb. 819-dl. 



i 



THREATS OF WAR 887 

No matter, continues the Chief Justice, how 
many questions, other than that affecting the 
Constitution or laws, are involved in a case; if 
any National question *' forms an ingredient of the 
original cause," Congress can "give the circuit 
courts jurisdiction of that cause." The Ohio Bank 
case "is of this description." All the Bank's powers, 
functions, and duties are conferred or imposed by 
its charter, and "that charter is a law of the United 
States. • • Can a being, thus constituted, have a 
case which does not arise literally, as well as sub- 
stantially, under the law?" ^ 

If the Bank brings suits on a contract, the very 
first, the "foundation" question is, "has this legal 
entity a right to sue? . . This depends on a law of 
the United States" — a fact that can never be 
waived. " Whether it be in fact relied on or not, in 
the defense, it is still a part of the cause, and may be 
relied on." * Assume, as counsel for Ohio assert, that 
" the case arises on the contract " ; still, " the validity 
of the contract depends on a law of the United 
States. . . The case arises emphatically under the 
law. The act of Congress b its foundation. . . The 
act itself is the first ingredient in the case; is its ori- 
gin; is that from which every other part arises." * 

Marshall concedes that the State is directly inter- 
ested in the suit and that, if the Bank could have 
done so, it ought to have made the State a party. 
"But this was not in the power of the bank," be- 
cause the Eleventh Amendment exempts a State 
from being sued in such a case. So the "very diffi- 

» 9 Wheaton, 8«8. « lb. 82S-«4- « lb. 824-25. 



> 



888 JOHN MARSHALL 

cult question" arises, "whether, in such a case, the 
court may act upon the agents employed by the 
state, and on the property in their hands/' ^ 

Just what will be the result if the National courts 
have not this power? **A denial of jurisdiction for- 
bids all inquiry into the nature of the case/* even of 
"cases perfectly dear in themselves; . . where the 
government is in the exercise of its best-established 
and most essential powers/' If the National courts 
have no jurisdiction over the agents of a State, then 
those agents, under the "authority of a [State] law 
void in itself, because repugnant to the constitu- 
tion, may arrest the execution of any law in the 
United States *' — this they may do without any to 
say them nay.* 

In this fashion Marshall leads up to the serious 
National problem of the hour — the disposition of 
some States, revealed by threats and sometimes 
carried into execution, to interfere with the officers 
of the National Government in the execution of 
the Nation's laws. According to the Ohio- Virginia- 
Kentucky idea, those officers "can obtain no pro- 
tection from the judicial department of the govern- 
ment. The carrier of the mail, the collector of the 
revenue,' the marshal of a district, the recruiting of- 
ficer, may all be inhibited, under ruinous penalties, 
from the performance of their respective duties*'; 
and not one of them can "avail himself of the. pre- 
ventive justice of the nation to protect him in the 
performance of his duties." * 

1 9 Wheaton. 846-47. « lb. 847. 

' Marshall here refers to threats to resist forcibly the execuUon of 
the Tariff of 1%U. See inSra, 535-^. « 9 Wheaton, 847-4a 



THBEATS OF WAR 889 

Addressing himself still more directly to those 
who were flouting the authority of the Nation and 
preaching resistance to it, Marshall uses stern 
language. What is the real meaning of the anti- 
National crusade; what the certain outcome of it? 
^'Each member of the Union b capable, at its will, 
of attacking the nation, of arresting its progress at 
every step, of acting vigorously and eflfectually in 
the execution of its designs, while the nation stands 
naked, stripped of its defensive armor, and in- 
capable of shielding its agent or executing its laws, 
otherwise than by proceedings which are to take 
place after the mischief b perpetrated, and which 
must often be ineffectual, from the inability of the 
agents to make compensation." 

Once more Marshall cites the case of a State "pen- 
alty on a revenue oflScer, for performing his duty,** 
and in this way warns those who are demanding for- 
cible obstruction of National law or authority, that 
they are striking at the Nation and that the tribunals 
of the Nation will shield the agents and oflScers of the 
Nation: " K the courts of the United States cannot 
rightfully protect the agents who execute every law 
authorized by the constitution, from the direct action 
of state agents in the collecting of penalties, they can- 
not rightfully protect those who execute any law.'* ^ 

Here, in judicial language, was that rebuke of the 
spirit of Nullification which Andrew Jackson was soon 
to repeat in words that rang throughout the land and 
which still quicken thepulses of Americans. What is the 
great question before the court in the case of Osbom 

^ 9 Wheaton, 848-49. 



<. 



V. 



890 JOHN MARSHALL 

vs. The Bank of the United States; what, indeed, the 
great question before the country in the controversy 
between recalcitrant States and the imperiled Na- 
tion? It is, says Marshall, "whether the constitu- 
tion of the United States has provided a tribunal 
which can peacefully and rightfully protect those 
who are employed in carrying into execution the laws 
of the Union, from the attempts of a particular state 
to resist the execution of those laws/' 

Ohio asserts that "no preventive proceedings 
whatever,** no action even to stay the hand of a State 
agent from seizing property, no suit to recover it 
from that agent, can be maintained because it is 
brought "substantially against the State itself , in 
violation of the 1 1th amendment of the constitution/' 
Is this true? "Is a suit, brought against an indi- 
vidual, for any cause whatever, a suit against a state, 
in the sense of the constitution? *' * There are many 
cases in which a State may be vitally interested, as, 
for example, those involving grants of land by dif- 
ferent States. 

If the mere fact that the State is "interested** in, or 
affected by, a suit makes the State a party, "what 
rule has the constitution given, by which this in- 
terest is to be measured?** No rule, of course! Is 
then the coiul; to decide the degree of "interest*' 
necessary to make a State a party? Absurd! since 
the court would have to examine the "whole testi- 
mony of a cause, inquiring into, and deciding on, 
the extent of a State's interest, without having a 
right to exercise any jurisdiction in the case." * 

^ 9 Wheaton, SM. t lb. 85d-^. 



THREATS OF WAR 891 

At last he affirms that it may be ""laid down as a 
rule which admits of no exception, that, in all cases 
where jurisdiction depends on the party, it is the 
party named in tiie record.*^ Therefore, the Eleventh 
Amendment is, "of necessity, limited to those suits C 
in which a state is a party on the recordJ* ^ In the 
Ohio Bank case, it follows that, " the state not being 
a party on the record, and the court having jurisdic- 
tion over those who are parties on the record, the 
true question is, not one of jurisdiction, but whether '* 
the officers and agents of Ohio are "only nominal 
parties ** or whether "the coiul; ought to make a de- 
cree*' against them.* The answer to this question 
depends oq the constitutionality of the Ohio tax law. 
Although that exact point was decided in M'Culloch 
vs. Maryland,' "a revision of that opinion has been 
requested; and many considerations combine to in- 
duce a review of it/' * 

Maryland and Ohio claim the right to tax the 
National Bank as an "individual concern . . having 
private trade and private profit for its great end and 
principal object/* But this is not true; the Bank is 
a "public corporation, created for public and na- 
tional purposes*'; the fact that it transacts "private 
as well as public business'* does not destroy its char- 
acter as the "great instrument by which the fiscal 
operations of the government are eflfected/' ^ Ob- 
viously the Bank cannot live unless it can do a gen- 
eral business as authorized by its charter. This being 
so, the right to transact such business "is necessary 

^ 9 Wheaton, 857. (Italics the author's.) * Ih. 858. 

* See tujpTO, cbap. yi. J 9 Wheaton, 859. * Ih. 859-W. 



802 JOHN MABSHALL 

tx> the legitimate operations of the government, and 
was constitutionally and rightfully engrafted on the 
institution/* Indeed, the power of the Bank to en- 
gage in general banking is ""the vital part of the cor- 
poration; it is its soul/' As well say that, while the 
human body must not be touched, the "vivifying 
principle*' which "animates'* it may be destroyed, 
as to say that the Bank shall not be annihilated, 
but that the faculty b^^ which it exists may be extin- 
guished. 

For a State, then, to tax the Bank's "faculties, 
its trade and occupation, is to tax the Bank itself. To 
destroy or preserve the one, is to destroy or preserve 
the other." ^ The mere fact that the Na{4pnal Gov- 
ernment created this corporation does not relieve it 
from "state authority"; but the "operations'* of 
the Bank "give its value to the currency in which 
all the transactions of the government are con- 
ducted." In short, the Bank's business is "insepa- 
rably connected" with the "transactions" of the 
Government. "Its corporate character is merely €tn 
incident, which enables it to transact that business 
more beneficially." * 

The Judiciary "has no will, in any case" — no 
option but to execute the law as it stands. "Judicial 
power, as contradistinguished from the power of the 
laws, has no existence. Courts are the mere instru- 
ments of the law, and can will nothing." They can 
exercise no "discretion," except that of "discern- 
ing the course prescribed by law; and, when that is 
discerned, it is the duty of the court to follow it. 

1 9 Wheaton, 861-61^. * lb. 862-63. 



THREATS OF WAR 898 

Judicial power is never exercised for the purpose 
of giving effect to the will of the judge; always for 
the purpose of giving effect to the will of the legis- 
lature." ^ This passage, so wholly unnecessary to 
the decision of the case or reasoning of the opinion, 
was inserted as an answer to the charges of judicial 
"arrogance" and "usurpation." 

In conclusion, JMarshall holds that the Ohio law 
taxing the National Bank's branches is imconstitu- 
tional and void; that the State is not a "party on the 
record"; that Osbom, Harper, Currie, and Sullivan 
are " incontestably liable for the full amount of the 
money taken out of the Bank"; that this money may 
be pursued^jsince it "remained a distinct deposit " — '• 
in fact, was "kept untouched, in a trunk, by itself, 
. . to await the event of the pending suit respect- 
ing it." * The judgment of the lower court that the 
money must be restored to the Bank was right; but 
the judgment was wrong in charging interest against 
the State officers, since they "were restrained by 
the authority of the Circuit Court from using " the 
money, taken and held by them.* I 

So everybody having an immediate personal and 
practical interest in that particular case was made 
happy, and only the State Rights theorists were dis- 
comfited. It was an exceedingly human situation, 
such as Marshall, the politician, managed to create 
in his disposition of those cases that called for his ^ J 
highest judicial statesmanship . No matter how ^ 
acutely he irritated party leaders and forced upon 
them unwelcome issues, Marshall contrived to sat- 

1 9 Wheaton, 866. * lb. 86S-69. > lb. STL 



894 JOHN MARSHALL 

isfy the persons immediately interested in most of 
the cases he decided, ^ 

The Chief Justice himself was a theorist — one 
of the greatest theorists America has produced; but 
he also had an intimate acquaintance with human 
nature, and this knowledge he rightly used, in the 
desperate conflicts waged by him, to leave his an- 
tagonists disarmed of those weapons with which they 
were wont to fight. 

Seemingly Justice Johnson dissented; but, burn- 
ing with anger at South Carolina's defiance of his 
action in the negro saUor case, he strengthened 
Marshall's opinion in his very ** dissent." This is so 
conspicuously true that it may well be thought that 
Marshall inspired Johnson's "disagreement" with 
his six brethren of the Supreme Court. Whether 
the decision was ** necessary or imnecessary origi- 
nally," begins Johnson, " a state of things has now 
grown up, in some of the states^ which renders all the 
protection necessary, that the general government 
can give to this bank." ^ He makes a powerful and 
really stirring appeal for the Bank, but finally con- 
cludes, on technical grounds, that the Supreme 
Court has no jurisdiction.^ 

Immediately the fight upon the Supreme Court 
was renewed in Congress. On May 3, 1824, Repre- 
sentative Robert P. Letcher of Kentucky rose in the 
House and proposed that the Supreme Court should 
be forbidden by law to hold invalid any provision 

^ 9 WheatoQ, 871-72. (Italics the author's.) In reality Johnson is 
here referring to the threats of physical resistance to ike proposed 
tariff law of 1824. (See infira, chap, x.) 

« lb. 875-903. 



THREATS OP WAR S96 

of a State constitution or statute unless five out of 
the seven Justices concurred, each to give his opinion 
"separately and distinctly/* if the court held against 
the State. ^ Kentucky, said Letcher, had been de- 
prived of "equal rights and privileges/' How? By 
*^ construction. . . Yes, construction ! Its mighty pow- 
ers are irresistible; • • it creates new principles; . . it 
destroys laws long since established; and it is daily 
acquiring new strength/' ' John Forsyth of Georgia 
proposed as a substitute to Letcher's resolutions 
that, for the transaction of business, "a majority 
of thfe quorum" of the Supreme Court "shall be a 
majority of the whole court, including the Chief 
Justice/' A long and animated debate' ensued 
in which Clay, Webster, Randolph, and Philip P. 
Barbour, among others, took part. 

David Trimble of Kentucky declared that "no 
nation ought to submit, to an umpire of minorities.^ 
. • If less than three-fourths of the States cannot 
amend the Constitution, less than three-fourths of 
the judges ought not to construe it" — for judicial 
constructions are "explanatory amendments" by 
which "the person and property of every citizen 
must stand or fall/' • 

So strong had been the sentiment for placing some 
restraint on the National Judiciary that Webster, 

1 Annals, 18th Cong. 1st Sess. 2514. > lb. 2519H20. 

* Ih. 9^917. This debate was most scantily reported. Webster wrote 
of it: ''We had the Supreme Court before us yesterday. . . A debate 
arose which ksted all day. Cohens v. Virginia, Green and Biddle» &c. 
were all discussed. . . The proposition for the concurrence of five 
judges will not prevaO.'' (Webster to Story, May 4, 1824, iVtv. 
Canes.i Webster, i, S50.) 

J Annals, 18th Cong. Ist Seas. 2588. * lb. 25S9. 



S96 JOHN MARSHALL 

astute politician and most resourceful friend of the 
Supreme Court, immediately offered a resolution 
that, in any cause before the Supreme Court where 
the validity of a State law or Constitution is drawn 
in question ''on the ground of repugnancy to the 
Constitution, treaties, or laws, of the United States, 
no judgment shall be pronounced or rendered until 
a majority of all the justices • . legally competent 
to sit, • . shall concur in the opinion/' ^ 

But Marshairs opinion in Gibbons vs. Ogden ^ 
had now reached the whole country and, for the time 
being, changed popular hostility to the Supreme 
Court into public favor toward it. The assault in 
Congress died away and Webster allowed his sooth* 
ing resolution to be forgotten. When the attack on 
the National Judiciary was again renewed, the lan- 
guage of its adversaries was almost apologetic. 

^ Annals, 18th Cong. 1st Sess. 2541. 

Throughout this session Webster appears to have been much dis- 
turbed. For example, as eariy as April 10, 181M, he writes Story: 
*^I am exhausted. When I look m the glass. I think of our old New 
England saying, 'As thin as a shad.' I have not vigor enough left, 
either mental or physical, to try an action for assault and battery. 
• . I shall call up some bills reported by our [Judiciary] committee. . . 
The gentlemen of the West will propose a clause, requiring the assent 
of a majority of all the judges to a judgment, which pronounces a 
state law void, as being in violation of the constitution or laws of the 
United States. Do you see any great evil in such a provision? Judge 
Todd told me he thought it would give great satisfaction in the West. 
In what phraseology would you make such a provision? " (Webster to 
Stoiy> April 10, 1824, Prw. Cones.: Webster, i, 348-49.) 

' See next chapter. 



CHAPTER Vm 

COMMERCE BCADE FREE 

Bianhall's dedaion ioyohed in Hi oooaequeiioet the ezisteiioe of the UnioiL 

(John F. Dillon.) 

Opposing ri^ts to the aune thing cannot exist under the Constitution of our 
country. (Chancellor Nathan Saniford.) 

Sir* we shall keep on the windward side of treason, but we must combine to 
resist these encroachments, — and that effectually. (John Randolph.) 

That uncommon man ^dio presides over the Supreme Court is, in all human 
probability, the ablest Judge now sitting on any judicial bench in the worid. 

(Martin Van Buren.) 

At six o'clock in the evening of August 9, 1803, a 
curious assembly of curious people was gathered at 
a certain spot on the banks of the Seine in Paris. 
They were gazing at a strange object on the river- 
the model of an invention which was to affect the 
destinies of the world more powerfully and perma- 
nently than the victories and defeats of all the armies 
that, for a dozen years thereafter, fought over the 
ancient battle-fields of Europe from Moscow to Ma- 
drid. The occasion was the first public exhibition of 
Robert Fulton's steamboat. 

France was once more gathering her strength for 
the war which, in May, Great Britain had declared 
upon her; and Bonaparte, as First Consul, was in 
can^p at Boulogne. Fulton had been experimenting 
for a long time, and the pubUc exhibition now in prog- 
ress would have been made months earlier had not 
an accident delayed it. His activities had been re- 
ported to Bonaparte, who promptly ordered members 
of the Institute ^ to attend the exhibition and report 
to him on the practicability of the invention, which, 

^ Institut Dfttioiial des acieiioet et des arts. 



\ 



S98 JOHN MABSHALL 

he wrote, and in italics, "way change the face of the 
world.** ^ Prominent, therefore, among the throng 
were these learned men, doubting and skeptical as 
mere learning usually is. 

More conspicuous than Bonaparte's scientific 
agents, and as interested and confident as they were 
indifferent or scornful, was a tall man of distin- 
guished bearing, whose powerful features, bold eyes, 
a^ressive chin, and acquisitive nose indicated a 
character of unyielding determination, persistence, 
and hopefulness. This was the American Minister to 
\ France, Robert R. Livingston of New York, who, 
three months before, had conducted the Louisiana 
Purchase. By his side was Fulton himself, a man 
of medium height, slender and erect, whose intellec- 
tual brow and large, speculative eyes indicated the 
dreamer and contriver. 

The French scientists were not impressed, and the 
French Government dropped consideration of the 
subject. But Fulton and Livingston were greatly 
encouraged. An engine designed by Fulton was or- 
dered from a Birmingham manufacturer and, when 
constructed, was shipped to America. 

For many years inventive minds had been at work 
on the problem of steam navigation. Because of the 
cost and difficulties of transportation, and the ever- 
growing demand for means of cheap and easy water 
carriage, the most active and fruitful efforts to solve 
iixe problem had been made in America.^ Livingston^ 

1 Dickinson: Robert FuUon, Engineer and Artiei, 15^-57; also see 
Thurston: Robert FvJJUm, 118. 

> See Dickinson, 120-82; also Knox: I^fe rf Robert FuUan, 72-86; 
and Fletcher: Steam-Ships, 19-24. 



COMMERCE MADE FREE 899 

then Chancellor of New York, had taken a deep and 
practical interest in the subject.^ He had constructed 
a boat on the Hudson, and was so confident of suc- 
cess that, five years before the Paris experiments of 
Fulton, he had procured from the New York Legisla- 
ture an act giving him the exclusive right for twenty 
years to navigate by steamboats the streams and 
other waters of the State, provided that, within a.' 
year, he should build a boat making four miles ant 
hour against the current of the Hudson.^ The only 
difficulty Livingston encountered in securing the 
passage of this act was the amused incredulity of 
the legislators. The bill ** was a standing subject of 
ridicule" and had to run the gamut of jokes, jeers, 
and raillery.* The legislators did not object to grant- 
ing a monopoly on New York waters for a century or 
for a thousand years,* provided the navigation was 
by steam; but they required, in payment to them- 
selves, the price of derision and laughter. 

^ DickinsoQ, 134-85; Knox, 90-98. 

« Act of March 27, 1798, Laws cf New York, 1798, 882-88. 

This act, however, was merdy the transfer of similar privOeges 
granted to John Fitch on March 19, 1787, to whom, rather than to 
Robert Fulton, bdongs the honor of having invented the steamboat. 
The Fitch Act is not to be found in the published Laws of New York, 
but is printed in full as Appendix A to ''A Letter, addressed to Cad- 
wallader D. Golden, Esquire," by William Alexander Duer, the first 
biographer of Fulton. (Albany, 1817.) Duer*s pamphlet is uncom- 
monly valuable because it contains all the petitions to, and the acts 
of, the New York Legislature concerning the steamboat monopoly. 

* Beigart: Life qf Robert Fulton^ 168. Nobody but Livingston was 
willing to invest in what all bankers and business men considered a 
crasy enterprise. (lb. 100-01.) 

^ Knox, 98. It should be remembered, however, that the granting 
of monopdies was a very common practice everywhere during this 
period. (See Plrentice: Federal Power over Carriers and CorporatioMp 
60-85.) 



400 JOHN MARSHALL 

Livingston failed to meet in time the conditions 
of the steamboat act, but, with Livingston tenacity,* 
persevered in his efforts to build a practicable 
vesseL When, in 1801, he arrived in Paris as Amer- 
ican Minister, his mind was almost as full of the 
project as of his delicate and serious official tasks. 

Robert Fulton was then living in the French Cap- 
ital, working on his models of steamboats, subma- 
rines, and torpedoes, and striving to interest Na- 
poleon in his inventions.^ Livingston and Fulton 
soon met; a mutual admiration, trust, and friend- 
ship followed and a partnership was formed, ' Liv- 
ingston had left his interests in the hands of an alert 
and capable agent, Nicholas J. Roosevelt, who, in 
180S, had no difficulty in securing from the now hi- 
larious New York Legislating an extension of Living- 
ston's monopoly for twenty years upon the same 
terms as the first. ^ Livingston resigned his office 
and returned home. Within a year Fulton joined 
his partner. 

The grant of 1803 was forfeited like the preceding 
one, because its conditions had not been complied 
with in time, and another act was passed by the Legis- 
lature reviving the grant and extending it for two 
years.^ Thus encouraged and secured, Fulton and 
Livingston put forth every effort, and on Monday, 
August 17, 1807, four years and eight days after 
the dramatic exhibition on the river Seine in Paris, 

* Comparo with his brother's persistence in the Batture oontioyeniy» 

> Dickinson, 64-128; Knox, 8ff-44. 

' Knox, 98; see also Dickinson, 186. 

« Act of April 5, 1808. Latoa qf New York, 180i-0i, 828-«4, 

• Act of April 6, 1807, Lawi qf New York, 1807-09, 1218-14. 



COMMERCE MADE FREE 401 

the North River, ^ the first successful steamboat, 
made her voyage up the Hudson from New York 
to Albany* and the success of the great enterprise 
was assured. 

On April 11, 1808, a final law was enacted by the 
New York Legislature. The period of ridicule had 
passed; the members of that body now voted with 
serious knowledge of the possibilities of steam navi- 
gation. The new act provided that, for each new 
boat "established** on New York waters by Living- 
ston and Fulton and their associates, they should 
be "entitled to five years prolongation of their 
grant or contract with this state," the "whole term" 
of their monopoly not to exceed thirty years. All 
other persons were forbidden to navigate New York 
waters by steam craft without a license from Living- 
ston and Fulton; and any unlicensed vessel, "to- 
gether with the engine, tackle and apparel thereof/* 
should be forfeited to them.' 

Obedient to "the great god. Success," the public 
became as enthusiastic and friendly as it had been 
frigid and hostile and eagerly patronized this pleas- 
ant, cheap, and expeditious method of travel. The 
profits quickly justified the faith and perseverance of 
Livingston and Fulton. Soon three boats were nm- 
ning between New York and Albany. The fare each 
way was seven dollars and proportionate charges 
were made for intermediate landings, of which there 

^ Tlie North River was afterward named the CIermont> which 
was the name of Livingston's county seat. (Dickinson, 280.) 

' The country people along the Hudson thought the steamboat 
a sea monster or dse a sign of the end of the world. (Knox, 110-11.) 

» Act of April 11, 1808, Lawa of New York, 1807-09, 407-08. 
(Italics the author's.) 



402 JOHN MABSHALL 

were eleven. ^ Immediately the monopoly b^an oper- 
ating steam ferryboats between New York City and 
New Jersey.^ Having such solid reason for optimism, 
Livingston and Fulton, with prudent foresight, 
leaped half a continent and placed steamboats on 
the Mississippi, the traffic of which they planned to 
control by securing from the Legislature of Orleans 
Territory the same exclusive privileges for steam 
navigation upon Louisiana waters, which included 
the mouth of the Mississippi,' that New York had 
granted upon the waters of that State. Nicholas J. 
Roosevelt was put in charge of this enterprise, and 
in an incredibly short time the steamboat New 
Orleans was ploughing the turgid and treacherous 
currents of the great river.* 

^ Dickinson, 2SS-S4. 

> lb. SS4~86. The thoroughfare in New York, at the foot of 
which these boats landed, was thereafter named Fulton Street. (Zfr. 
236.) 

• See irtfra, 414. 

^ Dickinson, 1230. From the first Roosevelt had been associated 
with Livingston in steamboat experiments. He had constructed the 
engine for the craft with which Livingston tried to fulfill the conditicms 
of the first New York grant to him in 1798. Roosevdt was himsdf 
an inventor, and to him belongs the idea of the vertical wheel for pro- 
pdling steamboats which Fulton afterward adopted with success. 
(See J. H. B. Latrobe, in Maryland Historical Society Fvnd^PvbUaOion^ 
No. 5, 13-14.) 

Boosevdt.was also a manufacturer and made contracts with the 
Government for rolled and drawn copper to be used in war-vessels. 
The Government failed to carry out its agreement, and Roosevelt be- 
came badly embarrassed financially. In this situation he entered into 
an arrangement with Livingston and Fulton that if the report he was to 
make to them should be favorable, he was to have one third interest 
in the steamboat enterprise on the Western waters, while Livingston 
and Fulton were to supply the funds. 

The story of his investigations and experiments on the Ohio and 
Mississippi glows with romance. Although forty-six years old, he had 
but recently married and took his bride with him on this memorable 



CX)MM£RCE MADE FBEE 40S 

It was not long, however, before troubles eame< 



the first from New Jersey. Enterprising citizens of 

journey. At Kttsburgh he buQt a flatboat and on tliis the newly 
wedded couple floated to New Orleans; the tnp, with the long and 
numerouB stops to gather information concerning trade, transporta- 
tion» the volume and velocity of various streams^ requinng six months' 
time. 

Before proceeding far Roosevdt became certain of success. Dis- 
covering coal on the banks of the Ohio, he bought mrnes, set men at 
work in them, and stored coal for the steamer he felt svae would be 
built. His expectation was justified and, returning to New York from 
New Orleans, he readily convinced Livingston and Fulton of the 
practicability of the enterprise and was authorized to go back to Pitts- 
burgh to construct a steamboat, the design of which was made by 
Fulton. By the sununer of 1811 the vessel was finished. It cost 
$$8,000 and was named the New Orleans. 

Late in September, 1811, the long voyage to New Orleans was be- 
gun, the only passengers being Boosevdt and his wife. A great crowd 
cheered them as the boat set out from Pittsburgh. At Cincinnati the 
whole population greeted the arrival of this extraordinary craft. Mr. 
and Mrs. Roosevelt were given a dinner at Louisville, where, how- 
ever, all declared that while the boat could go down the river, it never 
could ascend. Roosevelt invited the banqueters to dine with him on 
the New Orleans the next night and while toasts were being drunk 
and hilarity prevailed, the vessd was got under way and swiftly pro- 
ceeded upstream, thus convincing the doubters of the power of the 
steamboat. 

From Louisville onward the vo3^age was thrilling. The earthquake 
of 1811 came just after the New Orleans passed Louisville and this 
changed the river channels. At another time the boat took fire and 
was saved with diflSculty. Along the shore the inhabitants were torn 
between terror of the earthquake and fright at this monster of the 
waters. The crew had to contend with snags, shoals, sandbars, and 
other obstructions. Finally Natchez was reached and here thou- 
sands of people gathered on the lAuSs to witness this triumph of 
science. 

At last the vessd arrived at New Orleans and the first steamboat 
voyage on the Ohio and Mississippi was an accomplished fact. The 
experiment, which began two years before with the flatboat voyage of 
a bride and groom, ended at the metropolis of the Southwest in the 
marriage of the steamboat captain to Mrs. Roosevelt's maid, with 
whom he had fallen in love during this thrflling and historic voyage. 
(See Latrobe, in Md. Hist. Soc, Fund-Pub, No. 6. A good sununary 
of Latrobe's narrative is given in Preble: Chronological History of the 
Origin and Development of Steam NatngaHon, 77-81.) 



404 JOHN MARSHALL 

that State also built steamboats; but the owners oi 
any vessel entering New York waters, even though 
acting merely as a ferry between Hoboken and New 
York City, must procure a license from Livingston 
and Fulton or forfeit their boats. From discontent at 
this condition the feelings of the people rose to re- 
sentment and then to anger. At last they determined 
to retaliate, and early in 1811 the New Jersey Legis- 
lature passed an act authorizing the owner of any 
boat seized under the New York law, in turn to cap- 
tiu*e and hold any steam-propelled craft belonging 
**in part or in whole'* to any citizen of New York; 
"which boat • • shall be forfeited • • to the . . owner 
. . of such . • boats which may have been seized" 
under the New York law.^ 

New York was not slow to reply. Her Legislature 
was in session when that of New Jersey thus declared 
commercial war. An act was speedily passed pro- 
viding that Livingston and Fulton might enforce at 
law or in equity the forfeiture of boats unlicensed by 
them, " as if the same had been tortiously and wrong- 
fully taken out of their possession " ; and that when 
such a suit was brought the defendants should be 
enjoined from running the boat or "removing the 
same or any part thereof out of the jurisdiction of 
the court." ^ 

Connecticut forbade any vessel hcensed by Liv- 
ingston and Fulton from entering Connecticut wa- 
ters.' The opposition to the New York steamboat 
monopoly was not, however, confined to other 

1 Act of Jan. 25, 1811» Ads of New Jersey, 1811, 298-99. 
« Act of April 9, 1811, Laws of New York, 1811, 868-70. 
' Laws of ConnecHeutt May Sess. 1822, chap, xxviu. 



CX)MM£RCE MADE FREE 405 

States. Citizens of New York defied it and began to 
run steam vessels on the Hudson.^ James Van Ingen 
and associates were the first thus to challenge the 
exclusive "contract," as the New York law termed 
the franchise which the State had granted to Liv- 
ingston and Fulton. Suit was brought against Van 
Ingen in the United States Circuit Court in New 
York, praying that Livingston and Fulton be 
" quieted in the possession, '* or in the exclusive right, 
to navigate the Hudson secured to them by two 
patents.* The bill was dismissed for want of ju- 
risdiction. Thus far the litigation was exclusively 
a State controversy. Upon the face of the record 
the National element did not appear; yet it was the 
governing issue raised by the dispute. 

Inmiediately Livingston and Fulton sued Van 
Ingen and associates in the New York Court of 
Chancery, praying that they be enjoined from oper- 
ating their boats. In an opinion of great ability and 
almost meticulous learning. Chancellor John Lansing 
denied the injunction; he was careful, however, not 
to base his decision on a violation of the commerce 
clause of the National Constitution by the New 
York steamboat monopoly act. He merely held 
that act to be invaUd because it was a denial of a 
natiu^al right of all citizens alike to the free naviga- 
tion of the waters of the State. In such fashion the 
National question was still evaded. 

^ Dickinson, 244. ; 

* Livingston eial, vs. Van Ingen ei at., 1 Paine, 45-46. Brockholst 
livingston. Associate Justice of the Supreme Court, sat in tliis case 
with William P. Van Ness (the friend and partisan of Burr), and de- 
livered the opinion. 



406 JOHN MARSHALL 

The Court of Errors ^ reversed the decree of Chan- 
cellor Lansing. Justice Yates and Justice Thompson 
delivered State Rights opinions that would have 
done credit to Roane.^ At this point the National 
consideration develops. The opinion of James Kent, 
then Chief Justice, was more moderate in its denial 
of National power over the subject. , Lideed, Kent 
appears to have anticipated that the Supreme Court 
would reverse him. Nevertheless, his opinion was 
the soiu*ce of all the arguments thereafter used in 
defense of the steamboat monopoly. Because of this 
fact; because of Kent's eminence as a jurist; and 
because Marshall so crushingly answered his argu- 
ments, a precis of them must be given. It should be 
borne in mind that Kent was defending a law 
which, in a sense, was his own child; as a member of 
the New York Council of Revision, he had passed 
upon and approved it before its passage. 

There could have been "no very obvious constitu- 
tional objection" to the steamboat monopoly act, 
began Kent, "or it would not so repeatedly have 
escaped the notice of the several branches of the 
government • when these acts were under considera- 
tion." * There had been five acts all told;* that of 
1798 would surely have attracted attention since it 

1 The full title of this tribunal was the ''Court for the Trial of Ln- 
peachments and the Correction of Errors." It was the court of last 
resort, appeals lying to it from the Supreme Court of Judicature and 
from the Court of Chancery. It consisted of the Justices of the Su- 
preme Court of Judicature and a number of State Senators. A more 
absurdly constituted court cannot well be imagined. 

3 9 Johnson, 558, 56S. 

' The State Soiate, House, Coimcil of Revision, and Governor. 

* 9 Johnson, 572. 

> Those enacted in 1798, 1808, 1807, 1808, and 1811. 



COMMERCE MADE FREE 407 

was the first to be passed on the subject after the 
National Constitution was adopted. It amounted 
to *'a legislative exposition" of State powers under 
the new National Government. 

Members of the New York Legislating of 1798 had 
also been members of the State Convention that rati- 
fied the Constitution, and "were masters of all the 
critical discussions'* attending the adoption of that 
instrument- This was peculiarly true of that "ex- 
alted dasiracter/' John Jay, who was Governor at 
that time; and "who was distinguished, as well in 
the council of revision, as elsewhere, for the scrupulous 
care and profound attention with which he examined 
every question of a constitutional nature." ^ The 
Act of 1811 was passed after the validity of the 
previous ones had been challenged and "was, there- 
fore, equivalent to a declaratory opinion of high 
authority, that the former laws were valid and con- 
stitutional.*' ^ 

The people of New York had not "alienated" to 
the National Government the power to grant ex- 
clusive privileges. This was proved by the charters 
granted by the State to banks, ferries, markets, canal 
and bridge companies. "The legislative power in 
a single, independent government, extends to every 
proper object of power, and is limited only by its own 
constitutional provisions, or by the fundamental 
principles of all government, and the unalienable 
rights of mankind.**' In what respect did the steam- 
boat monopoly violate any of these restrictions? In 

^ 9 Johnson, 578. Jay as Governor was Chairman of the Council 
of Revision, of which Kent was a member. 
'16.5712. > 16.578. OtaUcs the author's.) 



408 JOHN MARSHALL 

no respect. ^* It interfered with no man's property/' 
Everybody could freely use the waters of New York 
in the same manner that he had done before. So 
there was "no violation of first principles.'* ^ 

Neither did the New York steamboat acts violate 
the National Constitution. State and Nation are 
"supreme within their respective constitutional 
spheres." It is true that when National and State 
laws "come directly in contact, as when they are 
aimed at each other," those of the State "must 
yield"; but State Legislatures cannot all the time 
be on the watch for some possible future collision. 
The only "safe rule of construction" is this: "If any 
given power was originally vested in this State, if it 
has not been exclusively ceded to Congress, or if the 
exercise of it has not been prohibited to the States, 
we may then go on in the exercise of the power until 
it comes practically in collision with the actual exer- 
cise of some congressional power." * 

The power given Congress to regulate commerce is 
not, "in express terms, exclusive, and the only pro- 
hibition upon the States " in this regard concerns the 
making of treaties and the laying of tonnage im- 
port or export duties. All commerce within a State 
is "exclusively" within the power of that State.* 
Therefore, New York's steamboat grant to Living- 
ston and Fulton is valid. It conflicts with no act of 
Congress, according to Kent, who cannot "perceive 
any power which . . can lawfully carry to that ex- 
tent." If Congress has any control whatever over 

» 9 Johnson, 574. « lb. 575-76. 

» lb. 577-78. 



COMMERCE MADE FREE 40» 

New York waters, it is concurrent with that of the 
State, and even then, "no further than may be 
incidental and requisite to the due regulation of 
commerce between the States, and with foreign 
nations/' ^ 

Kent then plunges into an appalling mass of au- 
thorities, in dealing with which he delighted as much 
as Marshall recoiled from the thought of them.^ So 
Livingston and Fulton's steamboat monopoly was 
upheld.' 

But what were New York waters and what were 
New Jersey waters? Confusion upon this question 
threatened to prevent the monopoly from gathering 
fat profits from New Jersey traffic. Aaron Ogden,* 
who had purchased the privilege of running ferry- 
boats from New York to certain points on the New 
Jersey shore, combined with one Thomas Gibbons, 
who operated a boat between New Jersey landings, 
to exchange passengers at Elizabethtown Point in 
the latter State. Gibbons had not secured the per- 

^ 9 Johnson, 578, 580. . > lb. 582-88. 

' An the Senators concurred except two, Lewis and Townsend» 
who declined giving opinions because of relationship with the parties 
to the action. (76.589.) 

* Ogden protested against the lavingston-Fulton steamboat monop- 
oly in a Memorial to the New York Legislature. (See Duer, 94-97.) 
A conunittee was appointed and rq^orted the facts as Ogden stated 
them; but concluded that, since New York had granted exdusive 
steamboat privileges to Livingston, *'the honor of the State requires 
that its faith should be preserved.** However, said the committee, the 
Livingston-Fulton boats **are in substance the invention of John 
Fitch," to whom the original monopoly was granted, after the expira- 
tion of which **the right to use'* steamboats ''became common to all 
the citizens of the United States.*' Moreover, the statements upon 
which rested the livingston mcmopoly of 1798 "were not true in 
fact," Fitch having forestalled the claims of the Livingston pretensions* 
(lb. 108-04.) 



410 JOHN MAB^ALL 

mission of the New York steamboat monopoly to 
navigate New York waters. By his partnership with 
Ogden he, in reality, carried passengers from New 
York to various points in New Jersey. In fact, 
Ogden and Gibbons had a common traffic agent in 
New York who booked passengers for routes, to 
travel which required the service of the boats of both 
Ogden and Gibbons. 

So ran the allegations of the bill for an injimction 
against the offending carriers filed in the New York 
Court of Chancery by the steamboat monopoly in 
the spring of 1819. Ogden answered that his license 
applied only to waters **excltisively within the state 
of NevhYorkJ"^ and that the waters lying between the 
New Jersey ports "are within the jurisdiction of New 
Jersey.*^ Gibbons admitted that he ran a boat be- 
tween New Jersey ports under "a coasting license^* 
from the National Government. He denied, how- 
ever, that the monopoly had "any exclusive right" 
to run steamboats from New York to New Jersey. 
Both Ogden and Gibbons disclaimed that they ran 
boats in combination, or by agreement with each 
other. ^ 

Kent, now Chancellor, declared that a New York 
statute * asserted jurisdiction of the State over " the 
whole of the river Hudson, southward of the northern 
boundary of the city of New-York, and the whole of 
the bay between Staten Island and Long or Nassau 
Island." He refused to enjoin Ogden because he 

^ 4 Johnson's Chancery Reports^ 50-51. The reader must not con* 
fuse the two series of Reports by Johnson; one contains the decisions of 
the Court of Errors; the other, those of the Court of Chancery. 

* Act of April 6, 1808, Laws qf New York, 1807-09, SlS-15. 



COMMERCE MADE FREE 411 

operated his boat under license of the steamboat 
monopoly; but did enjoin Gibbons "from navigat- 
ing the waters in the bay of New-York, or Hudson 
river, between Staten Island and Powles Hook/' ^ 

Ogden was content, but Gibbons, thoroughly an- 
gered by the harshness of the steamboat monopoly 
and by the decree of Chancellor Kent, began to run 
boats regularly between New York and New Jersey in 
direct competition with Ogden.* To stop his former 
associate, now his rival, Ogden applied to Chancellor 
Kent for an injunction. As in the preceding case. 
Gibbons again set up his license from the National 
Government, asserting that by virtue of this Ucense 
he was entitled to run his boats ''in the coasting 
trade between ports of the same state, or of diflFerent 
states," and could not be excluded from such traffic 
** by any law or grant of any particular state, on any 
pretence to an exclusive right to navigate the waters 
of any particular state by steam-boats." Moreover, 
pleaded Gibbons, the representatives of Livingston 
and Fulton had issued to Messrs. D. D. Tompkins, 
Adam Brown, and Noah Brown a license to navigate 
New York Bay; and this license had been assigned 
to Gibbons.' 

Kent held that the act of Congress,* concerning 
the enrollment and licensing of vessels for the coast- 
ing trade, conferred no right " incompatible with an 
exclusive right in Livingston and Fulton" to navi- 
gate New York waters.* The validity of the steam- 

' 4 Johnson's Chancery Reports, 51, 53. 

» lb. 152. • lb. 154. 

« Act of Feb. 18, 1798, U.8. Statutes at Large, i, 805-18. 

* 4 Johnson's Ckanoery Reparte, 156. 



413 JOHN MARSHALL 

boat monopoly laws had been settled by the decision 
of the Court of Errors in Livingston vs. Van Ingen.^ 
If a National law gave to all vessels, " duly licensed " 
by the National Government, the right to navigate 
all waters "within the several states," despite State 
laws to the contrary, the National statute would 
"overrule and set aside" the incompatible legisla- 
tion of the States. "The only question that could 
arise in such a case, would be, whether the [Na- 
tional] law was constitutional/' But that was not 
the situation; "there is no collision between the act 
of Congress and the acts of this State, creating the 
steam-boat monopoly/' At least "some judicial de- 
cision of the supreme power of the Union, acting 
upon those laws, in direct collision and conflict " with 
them, is necessary before the comls of New York 
"can retire from the support and defence of them."* 

Undismayed, Gibbons lost no time in appealing to 
the New York Court of Errors, and in January, 1820, 
Justice Jonas Piatt delivered the opinion of that tri- 
bunal. Immediately after the decision in Livingston 
vs. Van Ingen, he said, many, who formerly had re- 
sisted the steamboat monopoly law, acquiesced in 
the judgment of the State's highest court and secured 
licenses from Livingston and Fulton. Ogden was one 
of these. The Court of Errors rejected Gibbons's 
defense, followed Chancellor Kent's opinion, and 
affirmed his decree.' 

Thus did the famous case of Gibbons vs. Ogden 
reach the Supreme Court of the United States; thus 

^ 9 Jobnson, 507 el 9eq. 

s 4 Johnson's Chancery Reports, 158-59. ' 17 Johnson, 488 et seq. 



COMMERCE MADE FREE 41S 

was John Marshall given the opportunity to deliver 
the last but one of his greatest nation-making opin- 
ions — an opinion which, in the judgment of most 
lawyers and jurists, is second only to that in M'Cul- 
loch vs. Maryland in ability and statesmanship. By 
some, indeed, it is thought to be sui>erior even to that 
state paper. 

The Supreme Court, the bar, and the public an- 
ticipated an Homeric combat of legal warriors when 
the case was argued, since, for the first time, the 
hitherto imrivaled Pinkney was to meet the new 
legal champion, Daniel Webster, who had won his 
right to that title by his efforts in the Dartmouth 
College case and in M'Culloch vs. Maryland.^ It was 
expected that the steamboat monopoly argument 
would be made at the February session of 1821, and 
Story wrote to a friend that "the arguments will be 
very splendid/' * 

But, on March 16, 1821, the case was dismissed 
because the record did not show that there was a 
final decree in the court " from which said appeal 
was made." • On January 10, 1822, the case was 
again docketed, but was continued at each term of 
the Supreme Court thereafter until February, 1824. 
Thus, nearly four years elapsed from the time the 
appeal was first taken until argument was heard.* 

By the time the question was at last submitted to 

^ See supra, 24(H50, 284-^. 

* Story to Fettyplace, Feb. «8, 1821, Story, i, 897. 

' Records Supreme Court, MS. 

^ The case was first docketed, June 7, 1820, as Abtod. Ogden ti. 
Thomas Oibbint, and the defective transcript was filed October 17, 
of the same year. When neact docketed, the tide was correctly given, 
Thomas Gibbons i». Aaron Ogden. (lb.) 



^:. 



414 JOHN MABSHALL 

Marshall, transportation had become the most press- 
ing and important of all economic and social prob- 
lems confronting the Nation, excepting only that of 
slavery; nor was any so unsettled, so confused. 

Localism had joined hands with monopoly — at 
the most widely separated points in the Repub- 
lic, States had granted "exclusive privileges'* to 
the navigation of " State waters/' At the time that 
the last steamboat grant was made by New York to 
Livingston and Fulton, in 1811, the Legislature of the 
Territory of Orleans passed, and Governor Claiborne 
approved, an act bestowing upon the New York 
monopoly the same exclusive privil^es conferred by 
the New York statute. This had been done soon 
after Nicholas J. Roosevelt had appeared in New 
Orleans on the bridge of the first steamboat to navi- 
gate the Mississippi. Whoever operated any steam 
vessel upon Louisiana waters without license from 
Livingston and Fulton must pay them $5000 for each 
offense, and also forfeit the boat and equipment.^ 

The expectations of Livingston and Fulton of a 
monopoly of the traffic of that master waterway were 
thus fulfilled. When, a few months later, Louisiana 
was admitted to the Union, the new State found 
herself bound by this monopoly from which, how- 
ever, it does not appear that she wished to be re- 
leased. Thus Livingston and Fulton held the keys 
to the two American ports into which poured the 
greatest volume of domestic products for export, 
and from which the largest quantity of foreign trade 
found its way into the interior. 

1 Act of April 10, 1811» Acta qf Territory cf Orleans, 1811, 112-18. 



COMMERCE MADE FREE 415 

Three years later Greorgia granted to Samuel How- 
ard of Savannah a rigid monopoly to transport mer- 
chandise upon Georgia waters in all vessels " or rafts '* 
towed by steam craft. ^ Anybody who infringed 
Howard's monopoly was to forfeit $500 for each 
offense, as well as the boat and its machinery. The 
following year Massachusetts granted to John 
Langdon Sullivan the "exclusive rights to the Con- 
necticut river within this Conmionwealth for the use 
of his patent steam towboats for . . twenty-eight 
years." ^ A few months afterwards New Hampshire 
made a like grant to Sullivan.' About the same 
time Vermont granted a monopoly of navigation in 
the part of Lake Champlain under her jurisdiction.^ 
These are some examples of the general tendency of 
States and the promoters of steam navigation to 
make commerce pay tribute to monopoly by the 
exercise of the sovereignty of States over waters 
within their jurisdiction. Retaliation of State upon 
State again appeared — and in the same fashion that 
wrecked the States under the Confederation.* 

But this ancient . monopolistic process could not 
keep pace with the prodigious development of water 

* Act of Nov. 18, 1814, Laws (^ Georgia, 18U, October Sess. 28-80. 

* Act of Feb. 7, 1815, Laws rf Massachusetts, 1812-15, 595. 
' Act of June 15, 1815, Laws of New Hampshire, 1816, n, 5. 

* Act of Nov. 10, 1815, Laws of Vermont, 1815, 20. 

* Ohio, for example, passed two laws for the "protection" of its 
citizens owning steamboats. This act provided that no craft propelled 
by steam, operated under a license from the New York monopoly, 
should land or receive passengers at any point on the Ohio shores of 
Lake Erie imless Ohio boats were permitted to navigate the waters of 
that lake within the jurisdiction of New York. For every passenger 
landed in violation of these acts the offender was made subject to 
a fine of $100. (Chap, xxv. Act of Feb. 18, 1822, and chap, n, Act of 
May 23, 1822, Laws qf Ohio, 1822.) 



416 JOHN MARSHALL 

travel and transportation by steamboat. On every 
river, on every lake, glided these steam-driven ves- 
sels. Their hoarse whistles startled the thinly set- 
tled wilderness; or, at the landings on big rivers flow- 
ing through more thickly peopled regions, brought 
groups of onlookers to witness what then were con- 
sidered to be marvels of progress.^ 

By 1820 seventy-nine steamboats were running on 
the Ohio between Pittsburgh and St. Louis, most of 
them from 160 to 650 tons burden. Pittsburgh, Cin- 
cinnati, and Louisville were the chief places where 
these boats were built, though many were con- 
structed at smaller towns along the shore.* They 
carried throngs of passengers and an ever-swelling 
volume of freight. Tobacco, pork, beef, flour, corn- 
meal, whiskey — all the products of the West ' were 
borne to market on the decks of steamboats which, 
on the return voyage, were piled high with manu- 
factured goods. 

River navigation was impeded, however, by snags, 
sandbars, and shallows, while the traffic overland 
was made difficult, dangerous, and expensive by 
atrocious roads. Next to the frantic desire to un- 
burden themselves of debt by " relief laws *' and other 

^ Niles's Register for these years is full of accounts of the building, 
launching, and departures and arrivals of steam craft throughout the 
whole interior of the country. 

' See Blane: An Excursion Through the United States and Canada^ 
by ''An English GrenUeman, " 119-21. For an accurate account of the 
commercial development of the West see also Johnson: History of Do" 
mestie and Foreign Commerce, i, 218-15. 

On March 1, 1819, flint saw a boat on the stocks at Jeffersonville* 
Indiana, 180 feet long, 40 feet broad, and of 700 tons burden. (Flint's 
Letters, in E. W. T.: Thwaites, ix, 164.) 

* Blane, 118. 



COMMERCE MADE FREE 417 

forms of legislative contract-breaking, the thought 
uppermost in the minds of the people was the im- 
provement of means of communication and trans- 
portation. This popular demand was voiced in the 
second session of the Fourteenth Congress. On 
December 16, 1816, John C. Calhoun brought the 
subject before the House. ^ Four days later he re- 
ported a bill to devote to internal improvements a 
^'the bonus of the National bank and the United 
States's share of its dividends.*' * It met strenuous 
opposition, chiefly on the groimd that Congress had 
no Constitutional power to expend money for such 
purposes.' An able report was made to the House 
based on the report of Secretary Gallatin in 1808. 
The vital importance of "internal navigation" was 
pointed out,^ and the bill finally passed.^ 

The last official act of President James Madison 
was the veto of this first bill for internal improve- 
ments passed by Congress. The day before his 
second term as President expired, he returned the 
bill with the reasons for his disapproval of it. He 
did this, he explained, because of the "insuperable 
difficulty . . in reconciling the bill with the Con- 
stitution." The power "proposed to be exercised 
by the bill" was not "enumerated," nor could it 
be deduced "by any just interpretation" from the 
power of Congress "to make laws necessary and 
proper" for the execution of powers expressly con- 
ferred on Congress. "The power to regulate com- 

1 AnnaU, 14th Cong, dd Sess. 296. * lb. 861. 

' See debate in the House, ib. 851-9^; and in the Senate, tb, 
166-70. 
^« lb. 924-6S. * March 1, 1817, ib. 105%. 



418 JOHN MABSHALL 

merce among the several States can not include a 
power to construct roads and canals, and to improve 
the navigation of water courses." Nor did the 
"^conunon defense and general welfare*** clause 
justify Congress in passing such a measure.^ 

But not thus was the popular demand to be si- 
lenced. Hardly had the next session convened when 
the subject was again taken up.^ On December 15, 
1817, Henry St. George Tucker of Virginia, chair- 
man of the Select Conunittee appointed to investi- 
gate the subject, submitted an uncommonly able 
report ending with a resolution that the Bank bonus 
and dividends be expended on internal improve- 
ments "with the assent of the States.'* ' For two 
weeks this resolution was debated.* Every phase 
of the power of Congress to regulate commerce was 
examined. And so the controversy went on year 
after year. 

Three weeks before the argument of Gibbons vs. 
Ogden came on in the Supreme Court, a debate b^an 
in Congress over a bill to appropriate funds for sur- 
veying roads and canals, and continued during all the 
time that the court was considering the case. It was 
going on, indeed, when Marshall delivered his opin- 
ion and lasted for several weeks. Once more the 

^ Veto Message of March 8, 1817» Richardson, i, 584-85. 

' Monroe gingerly referred to it in his First Inaugural Address. 
(Richardson, n, 8.) But in his First Annual Message he dutifully 
followed Madison and declared that "Congress do not possess the 
right" to appropriate National funds for internal improvements. 
So this third Republican President recommended an amendment to 
the Constitution "which shall give to Congress the right in ques- 
tion." (Ih. 18.) 

< Annda, 15th Cong. 1st Sess. 451-60. 

* lb. 1114-1250, 11268-1400. 



COMMERCE MADE FREE 419 

respective powers of State and Nation over in- 
ternal improvements, over commerce, over almost 
everything, were threshed out. As was usual with 
him, John Randolph supplied the climax of the 
debate* 

Three days previous to the argument of Gibbons 
vs. Ogden before Marshall and his associates, Ran- 
dolph arose in the House and delivered a speech 
which, even for him, was unusually brilliant. In it 
he revealed the intimate connection between the 
slave power and opposition to the National control 
of commerce. Randolph conceded the progress made 
by Nationalism through the extension of the doc- 
trine of implied powers. The prophecy of Patrick 
Henry as to the extinction of the sovereignty, rights, 
and powers of the State had been largely realized, 
he said. The promises of the Nationalists, made in 
order to secure the ratification of the Constitution, 
and without which pledges it never would have been 
adopted, had been contemptuously broken, he in- 
timated. He might well have made the charge out-> 
right, for it was entirely true. 

Randolph laid upon Madison much of the blame 
for the advancement of implied powers; and he 
arraigned that always weak and now ageing man 
in an eflfective passage of contemptuous eloquence.^ 

1 "All the difficulties under which we have labored and now labor 
on this subject have grown out of a fatal admission" by Madison 
** which runs counter to the tenor of his whdle political life, and is ex- 
pfessly contradicted by one of the most luminous and able State 
papers that ever was written [the Virginia Besolutions] — an admis- 
sion which gave a sanction to the principle that this Grovemment had 
the power to charter the present colossal Bank of the United States. 
Sir* . . that act, and one oihsx which I irill not name pViadison's War 



^ 



420 JOHN MARSHALL 

When, in the election of 1800, continued Randolph, 
the Federalists were overthrown, and "the con- 
struction of the Constitution according to the 
Hamiltonian version" was repudiated, "did we at 
that day dream, • . that a new sect would arise 
after them, which would so far transcend Alexan- 
der Hamilton and his disciples, as they outwent 
Thomas Jefferson, James Madison, and John Tay- 
lor of Caroline? This is the deplorable fact: such 
is now the actual state of things in this land; . . it 
speaks to the senses, so that every one may under- 
stand it/' ^ And to what will all this lead? To this, 
at last: "If Congress possesses the power to do 
what is proposed by this bill [appropriate money to 
survey roads and canals], . • they may emancipate 
every slave in the United States ^ — BJid with strongev 
color of reason than they can exercise the power 
now contended for.** 

Let Southern men beware! If "a coalition of 
knavery and fanaticism • • be got up on this floor, 
I ask gentlemen, who stand in the same predicament 
as I do, to look well to what they are now doing — 
to the colossal power with which they are now arm- 
Message in 1812], bring forcibly home to my mind a train of melan« 
choly reflections on the miserable state of our mortal being: 

' In life's last scenes, what prodigies surprisel 
Fears of the brave, and follies of the wise. 
From Marlborough's ^yes the streams of dotage flow. 
And Swift expires a drivler and a show/ 

''Such is the state of the case. Sir. It is miserable to think of it — 
and we have nothing 1^ to us but to weep over it" {AnnaU, 18th 
Cong. 1st Sess. ISOl.) 

Randolph was as violently against the War of 1812 as was Marshallt 
but he openly proclaimed his opposition. 

^ lb. ' Itidics the author's. 



COMMERCE MADE FREE 421 

ing this Government/' * And why, at the present 
moment, insist on this ^*new construction of the 
Constitution? . • Are there not already causes enough 
of jealousy and discord existing among us? . • Is 
this a time to increase those jealousies between 
different jjuarters of the country aheady suflSciently 
apparent? ** 

In closing, Randolph all but threatened armed 
rebellion: "'Should this bill pass, one more measure 
only requires to be consummated; and then we, who 
belong to that unfortunate portion of this Confed- 
eracy which is south of Mason and Dixon's line, . • 
have to make up our mind to perish . . or we must 
resort to the measures which we first opposed to 
British aggressions and usurpations — to maintain 
that independence which the valor of our fathers 
acquired, but which is every day sliding from under 
our feet. . • Sir, this is a state of things that can- 
not last. . . We shall keep on the windward side of 
treason — but we must combine to resist, and that 
effectually, these encroachments.'' * 

Moreover, Congress and the country, particu- 
larly the South, were deeply stirred by the tariff 
question; in the debate then impending over the 
Tariff of 1824, Nationalism and Marshall's theory 
of Constitutional construction were to be denounced 
in language almost as strong as that of Randolph 
on internal improvements.' The Chief Justice and 
his associates were keenly alive to this agitation; 
they well knew that the principles to be upheld in 

^ AnndU, 18th Cong. 1st Sess. 1806. 

> 16. 1810-11. The bill passed, 115 yeas to 86 nays. (lb. 1468-69.) 

» See i^fra, 585-86. 



422 JOHN MARSHALL 

Gibbons V8. Ogden would affect other interests and 
concern other issues than those directly involved in 
that case. 

So it was, then, when the steamboat monopoly 
case came on for hearing, that two groups of inter- 
ests were in conflict. State Sovereignty standing for 
exclusive privileges as chief combatant, with Free 
Trade and Slavery as brothers in arms, confronted 
Nationalism, standing at that moment for the power 
of the Nation over all commerce as the principal 
combatant, with a Protective Tariff and Emancipa- 
tion as its most effective allies. Fate had interwoven 
subjects that neither logically nor naturally had any 
kinship.^ 

The specific question to be decided was whether 
the New York steamboat monopoly laws violated 
that provision of the National Constitution which 
bestows on Congress the "power to regulate com- 
merce among the several States.'* 

The absolute necessity of a general supervision 
of comtaierce was the sole cause of the Convention 
at Annapolis, Maryland, in 1786, which resulted in 
the Constitutional Convention in Philadelphia the 
following year.* Since the adoption of uniform 

* See tn/ra, chap. x. 

' See vol. I, 810-12, of this work; also Marshall: Life rf George 
Washington, 2d ed. n, 105-06, 109-10, 125. And see Madison's " Pref- 
ace to Debates in the Con^rention of 1787." {Records of the Federal 
Convention: FtaTBSid,in,54t7^ ''Thewantof authy.inG>ng8. toregu- 
late Commerce had produced in Foreign nations particularly G. B. a 
monopolizing policy injurious to the trade of the U. S. and destructive 
to their navigation. . . The same want of a general power over G>m* 
merce led to an exercise of this power separatdy, by the States, w^ 
not only proved abortive, but engendered rival, conflicting and angry 
regulations." 



COMMERCE MADE FREE 423 

commercial regulations was the prime object of the 
Convention, there was no disagreement as to, or 
discussion of, the propriety of giving Congress full 
power over that subject. Every draft except one * 
of the Committee of Detail, the Committee of Style, 
and the notes taken by members contained some 
reference to a clause to that effect,^ 

The earliest exposition of the commerce clause of 
the Constitution by any eminent National authority, 
therefore, came from John Marshall. In his opinion ^ 
in Gibbons vs. Ogden he spoke the first and last 
authoritative word on that crucial subject. 

Pinkney was fatally ill when the Supreme Court 
convened in 1822 and died during that session. His 
death was a heavy blow to the steamboat monopoly, 
and his loss was not easily made good. It was finally 
decided to employ Thomas J. Oakley, Attorney- 
General of New York, a cold, clear reasoner, and 
carefully trained lawyer, but lacking imagination, 

^ Recordsy Fed. Cono. : Farrand, n, 148. The provision in this draft 
b very curious. It declares that ''a navigation act shall not be passed, 
but with the consent of (eleven states in) <id. of the Members 
present of > the senate and (10 in) <the like No. of > the house of 
representatives." 

* lb. 1S5, 157, 569, 505, 655. Boger Sherman mentioned interstate 
trade only incidentally. Speaking of exports and imports, he said 
that "the oppression of the uncommercial States was guarded agst. by 
the power to regulate trade between the States." (76. 808.) 

Writing in 1829, Madison said that the commerce clause ''being in 
the same terms with the power over foreign conunerce, the same ex- 
tent, if taken literally, would belong to it. Yet it . . grew out of the 
abuse of the power by the importing States in taxing the non-import- 
ing, and was intended as a n^ative and preventive provision against 
injustice among the States themsdves, rather than as a power to be 
used for the positive purposes of the Greneral Government, in which 
alone, however, the remedial power could be lodged." (Madison to 
CabeU, Feb. 18, 18129, ib. m, 478.) 



424 JOHN MARSHALL 

warmth, or breadth of vision.^ He was not an adequate 
substitute for the masterful and glowing Pinkney. 

When on February 4, 1824, the argument at last 
was begun, the interest in the case was so great that, 
although the incomparable Pinkney was gone, the 
court-room could hold but a small part of those who 
wished to hear that brilliant legal debate. Thomas 
Addis Enunet, whose "whole soul" was in the case, 
appeared for the steamboat monopoly and made in 
its behalf his last great argument. With him came 
Oakley, who was expected to perform some mar- 
velous intellectual feat, his want of attractive qual- 
ities of speech having enhanced his reputation as a 
thinker. Wirt reported that he was "said to be one 
of the first logicians of the age." * 

Gibbons was represented by Webster who, says 
Wirt, "is as ambitious as Ccesar," and "will not be 
outdone by any man, if it is within the compass of 
his power to avoid it." ' Wirt appeared with Web- 
ster against the New York monopoly. The argument 
was opened by Webster; and never in Congress or 
court had that surprising man prepared so carefully 
— and never so successfully.* Of all his legal argu- 

* See Monthly Law Reporter, New Series, x, 177. 

« Wirt to Carr, Feb. 1, 1824, Kennedy, n, 164. » lb. 

* ^'Reminiscence," that betrayer of history, is responsible for the 
fanciful story, hitherto accepted, that Webster was speaking on the tar- 
iff in the House when he was suddenly notified that Gibbons vs. Ogden 
would be called for argument the next morning; and that, swiftly con- 
cluding his great tariff argument, he went home, took medicine, slept 
until ten o'clock that night, then rose, and in a strenuous effort worked 
until 9 A.M. on his argument in the steamboat case; and that this was 
all the preparation he had for that glorious address. (Ticknor's remi- 
niscences of Webster, as quoted by CurUs, i, 216-17.) 

On its face, Webster's argument shows that this could not have 
been true. The fact was that Webster had had charge of the case in 



i 



COMMERCE MADE FREE 425 

ments, that in the steamboat case is incontestably 
supreme. And, as far as the assistance of associate 
counsel was concerned, Webster's address, unlike 
that in the Dartmouth College case, was all his 
own. It is true that every point he made had been 
repeated many times in the Congressional debates 
over internal improvements, or before the New 
York courts in the steamboat litigation. But these 
facts do not detract from the credit that is rightfully 
Webster's for his tremendous argument in Gibbons 
vs. Ogden^^" 

He began by admissions — a dangerous method and 
one which only a man of highest power can safely em- 
ploy. The steamboat monopoly law had been " delib- 
erately re-enacted,'' he said, and afterwards had the 
" sanction " of various New York courts, " than which 
there were few, if any, in the coimtry, more justly en- 
titled to respect and deference." Therefore he must, 
acknowledged Webster, ^^make out a clear case" if 
he hoped to win.^ 

the Supreme Court for three years; and that, since the argument was 
twice before expected, he had twice before prepared for it. 

The legend about his being stopped in his tariff speech b utterly 
without foundation. The debate on that subject did not even begin 
in the House until February 11, 1824 (Anmdt, 18th Cong. 1st Sess. 
1470\ three days after the argument of Gibbons vs, Ogden was con- 
cluded; and Webster did not make his famous speech on the Tariff Bill 
of 1824 until April 1-2, one month after the steamboat case had been 
decided. (16. 202^-68.) 

Moreover, as has been stated in the text, the debate on the survey 
of roads and canals was on in the House when the argument in Gib- 
bons 98, Ogden was heard; had been in progress for three weeks pre- 
viously and continued for some time afterward; and in this debate 
Webster did not participate. Indeed, the record shows that for more 
than a week before the steamboat argument Webster took almost no 
part in the House proceedings. {lb, 1214-1S18.) 

^ 9 Wheaton, 8. 



< 



426 JOHN MABSHALL 

What was the state of the country with respect 
to transportation? Everybody knew that the use 
of steamboats had become general; everywhere they 
plied over rivers and bays which often formed the 
divisions between States. It was inevitable that 
the regulations of such States should be "hostile" 
to one another. Witness the antagonistic laws of 
New York> New Jersey, and Connecticut. Surely 
all these warring statutes were not "consistent with 
the laws and constitution of the United States.'* If 
any one of them were valid, would anybody "point 
out where the state right stopped?" ^ 

Webster carefully described the New York steam- 
boat monopoly laws, the rights they conferred, and 
the prohibitions they inflicted.* He contended, 
among other things, that these statutes violated 
the National Constitution. "The power of Congress 
to regulate conunerce was complete and entire," 
said Webster, "and to a certain extent necessarily 
exclusive." * It was well known that the "imme- 
diate" reason and "prevailing motive" for adopting 
the Constitution was to "rescue" commerce "from 
the embarrassing and destructive consequences re- 
sulting from the legislation of so many different 
states, and to place it imder the protection of a 
uniform law." * The paramount object of estab- 
lishing the present Government was "to benefit and 
improve" trade. This, said Webster, was proved 
by the undisputed history of the period preceding 
the Constitution.* 
^ What commerce is to be regulated by Congress? 

1 9 Wheaton, 4-5. « 16. 6-9. » lb. 9. < lb. 11. » lb. 11-1«. 



COMMERCE MADE FEtEE 427 

Not that of the several States, but that of the Nation 
as a "unit." Therefore, the r^ulation of it "must 
necessarily be complete, entire and uniform. Its 
character was to be described in the flag which 
waved over it, E Pluribus Unum.** Of consequence. 
Congressional regulation of commerce must be 
** exclusive." Individual States cannot "assert a 
right of concurrent legislation, . • without manifest 
encroachment and confusion." ^ 

If New York can grant a monopoly over New 
York Bay, so can Virginia over the entrance of 
the Chesapeake, so can Massachusetts over the bay 
bearing the name and under the jurisdiction of that 
State. Worse stiU, every State may grant "an ex- 
clusive right of entry of vesseb into her ports." « 

Oakley, Enmiet, and Wirt exhausted the learning 
then extant on every point involved in the contro- 
versy. Not even Pinkney at his best ever was more 
thorough than was Emmet in his superb argument 
in Gibbons vs. Ogden.' 

The small information possessed by the most care- 
ful and thorough lawyers at that time concerning 
important decisions in the Circuit Courts of the 
United States, even when rendered by the Chief Jus- 
tice himself, is startlingly revealed in all these ar- 
guments. Only four years previously, Marshall, at 
Richmond, had rendered an opinion in which he as- 
serted the power of Congress over commerce as em- 

» 9 Wheaton. 14. « lb. U. 

' The student should carefully read these three admirable argu- 
ments, particularly that of Emmet. All of them deal with patent law 
as well as with the commerce clause of the Constitution. (See 
9 Wheaton, 8^-185.) The argument lasted from February 4 to Feb- 
ruary 9 inclusive. 



428 JOHN MARSHALL 

phatically as Webster or Wirt now insisted upon it 
This opinion would have greatly strengthened thdr 
arguments, and undoubtedly they would have dted 
it had they known of it. But neither Wirt nor Web- 
ster made the slightest reference to the case oi the 
Brig Wilson vs. The United States, decided during 
the May term, 1820. 

One offense charged in the libel of that vessel by 
the National Government was, that she had brought 
into Virginia certain negroes in violation of the laws 
of that State and in contravention of the act of Con- 
gress forbidding the importation of negroes into 
States whose laws prohibited their admission. Was 
this act of Congress Constitutional? The power to 
pass such a law is, says Marshall, ^Merived entirely '* 
from that clause of the Constitution which ^^ enables 
Congress, ^to regulate commerce with foreign na- 
tions, and among the several States/ '' ^ This power 
includes navigation. The authority to forbid foreign 
ships to enter our ports comes exclusively from the 
commerce clause. "If this power over vessels is not 
in Congress, where does it reside? Does it reside in 
the States? 

" No American politician has ever been so extrava- 
gant as to contend for this. No man has been wild 
enough to maintain, that, although the power to 
regulate conunerce, gives Congress an unlimited 
power over the cargoes, it does not enable that body 
to control the vehicle in which they are imported: 
that, while the whole power of conmierce is vested 
in Congress, the state legislatures may confiscate 

^ 1 Brockenbrough, 480-^1. 



COMMERCE MADE FREE 429 

every vessel which enters their ports, and Congress 
is unable to prevent their entry/' 

The truth, continues Marshall, is that "even an 
empty vessel, or a packet, employed solely in the 
conveyance of passengers and letters, may be regu- 
lated and forfeited'* under a National law. "There 
is not, in the Constitution, one syllable on the sub- 
ject of navigation. And yet, every power that per- 
tains to navigation has been . • rightfully exercised 
by Congress. From the adoption of the Constitu- 
tion, till this time, the universal sense of America 
has been, that the word commerce, as used in that 
instrument, is to be considered a generic term, 
comprehending navigation, or, that a control over 
navigation is necessarily incidental to the power 
to regulate conunerce." * 

Here was a weapon which Webster could have 
wielded with effect, but he was unaware that it ex- 
isted — a fact the more remarkable in that both 
Webster and Enmiet commented, in their argu- 
ments, upon State laws that prohibited the admis- 
sion of negroes. 

But Webster never doubted that the coiu1:'s de- 
cision would be against the New York steamboat 
monopoly laws. "Our Steam Boat case is not yet 
decided, but it can go but one way,** he wrote his 
brother a week after the argument.' 

On March 2, 1824, Marshall delivered that opin- 
ion which has done more to knit the American peo- 
ple into an indivisible Nation than any other one 

> 1 Brockenbrough, 481-82. 

* Webster to his brother, Fdb. 15, ISIM, Van Tyne, 102. 



430 



JOHN MARSHALL 



force in our history, excepting only war. In Mar- 
bury vs. Madison he established that fundamental 
principle of liberty that a permanent written consti- 
tution controls a temporary Congress; in Fletcher 
vs. Peck, in Sturges vs. Crowninshield, and in the 
Dartmouth College case he asserted the sanctity of 
good faith; in M'Culloch vs. Maryland and Cohens 
f^. Virginia he made the Government of the Ameri- 
can people a living thing; but in Gibbons vs. Ogden 
he welded that people into a unit by the force of 
their mutual interests. 

The validity of the steamboat monopoly laws 
of New York, declares Marshall, has been repeat- 
edly upheld by the Legislature, the Council of Re- 
vision, and the various courts of that State, and is 
"supported by great names — by names which have 
all the titles to consideration that virtue, intelli- 
gence, and office, can bestow/' ^ Having paid this 
tribute to Chancellor Kent — for every word of it 
was meant for that great jurist — Marshall takes 
up the capital question of construction. 

It is urged, he says, that, before the adoption of 
the Constitution, the States **were sovereign, were 
completely independent, and were connected with 
each other only by a league. This is true. But when 
these allied sovereigns converted their league into 
a government, when they converted their Congress 
of Ambassadors, deputed to deUberate on their com- 
mon concerns, and to recommend measures of gen- 
eral utiUty, into a legislature, empowered to enact 
laws . . the whole character" of the States "under- 

^ 9 WheatoQ, 186. 



COMMERCE MADE FREE 4S1 

went a change, the extent of which must be deter- 
mined by a fair consideration" of the Constitution. 

Why ought the powers "expressly granted '* to 
the National Government to be "construed strictly," 
as many insist that they should be? "Is there one 
sentence in the constitution which gives coimte- 
nance to this rule?'* None has been pointed out; 
none exists. What is meant by "a strict construc- 
tion"? Is it "that narrow construction, which 
would cripple the government and render it unecjual 
to the objects for which it is declared to be insti- 
tuted,^ and to which the powers given, as fairly 
understood, render it competent "? The court cannot 
adopt such a rule for expoimding the Constitution.^ 

Just as men, "whose intentions require no con- 
cealment," use plain words to express their meaning, 
so did "the enlightened patriots who framed our 
constitution," and so did "the people who adopted 
it." Surely they "intended what they have said." 
If any serious doubt of their meaning arises, con^ 
ceming the extent of any power, "the objects for 
which it was given . • should have great influence 
in the construction." • 

Apply this common-sense rule to the commerce 
clause of the Constitution.* What does the word 

1 ''Wb the People of the United States, in Order to fonn a more 
perfect Union, establish Justice, insure domestic Tranquility, provide 
for the common defence, promote the general Welfare, and secure the 
Blessings of Liberty to ourselves and our Posterity, do ordain and es- 
tablish this Constitution for the United States of America." (Pre* 
amble to the Constitution of the United States.) 

« Wheaton, 187-88. » lb. 188-89. 

* ''The Congress shall have Power • • to regulate Commerce with 
foreign Nations, and among the Several States, and with the Indian 
Tribes." (Constitution of the United States, Article i. Section 8.) 



432 JOHN MARSHALL 

*"' commerce" mean? Strict constructionists, like 
the advocates of the New York steamboat mo- 
nopoly, "limit it to . . buying and selling . . and do 
not admit that it comprehends navigation." But 
why not navigation? "Conmierce . . is traffic, but 
^ it is something more; it is intercourse." If this is not 
true, then the National Government can make no 
law concerning American vessels — "yet this power 
has been exercised from the conmiencement of the 
government, has been exercised with the consent of 
all, and has been imderstood by all to be a com- 
mercial regulation. All America imderstands . • the 
word *conunerce' to comprehend navigation. . . 
The power over commerce, including navigation, 
was one of the primary objects for which the people 
of America adopted their government. • • The at- 
tempt to restrict it [the meaning of the word "com- 
merce"] comes too late." 

Was not the object of the Embargo, which "en- 
j^iged the attention of every man in the United 
States," avowedly "the protection of commerce? . . 
By its friends and its enemies that law was treated 
as a conunercial, not as a war measure." Lideed, its 
very object was "the avoiding of war." Resistance 
to it was based, not on the denial that Congress can 
regulate conmierce, but on the ground that "a per- 
petual embargo was the annihilation, and not the 
regulation of commerce." This iUustration proves 
that "the universal understanding of the American 
people" was, and is, that "a power to regulate navi- 
gation is as expressly granted as if that term had beoi 
added to the word * commerce.'" ^ 

^ 9 Wheaton, 19d-98. 



k^ 



COMMERCE MADE FREE 4SS 

Nobody denies that the National Government 
has unlimited power over foreign conmierce — "no 
sort of trade can be carried on between this country 
and any other, to which this power does not extend/* 
The same is true of commerce among the States. 
The power of the National Government over trade 
with foreign nations, and '^ among" the several 
States, is conferred in the same sentence of the 
Constitution, and ''must carry the same meaning 
throughout the sentence. . • The word 'among' 
means intermingled with." So "commerce among 
the states cannot stop at the external boundary line 
of each state, but may be introduced into the in- 
terior." This does not, of course, include the "com- 
pletely interior traffic of a state." ^ 

Everybody knows that foreign commerce is that 
of the'whole Nation and not of its parts. "Every 
district has a right to participate in it. The deep 
streams which penetrate our country in every direc- 
tion, pass through the interior of almost every state 
in the Union." The power to regulate this commerce 
"must be exercised whenever the subject exists. 
If it exists within a state, if a foreign voyage may 
commence or terminate within a state, then the 
power of Congress may be exercised within a state."* 

If possible, "this principle . . is still more clear, 
when applied to commerce 'among the several 
states.* They either join each other, in which case 
they are separated by a mathematical line, or they 
are remote from each other, in which case other 
states lie between them. • . Can a trading expedition 

^ Wheaton, 19S-M. * lb. 195. 



i_ 



484 JOHN MARSHALL 

between two adjoining states commence and ter- 
minate outside of each?" The very idea is absurd. 
And must not commerce between States "remote" 
from one another, pass through States lying between 
them? The power to regulate this commerce is in 
the National Government.* 
Y What is this power to "regulate conunerce"? It 
is the power "to prescribe the rule by which com- 
merce is to be governed. This power . . is complete 
in itself, may be exercised to its utmost extent, and 
acknowledges no limitations, other than are pre- 
scribed in the constitution; " and these do not affect 
the present case. Power over interstate conunerce " is 
vested in Congress as absolutely as it would be in a 
single government" under a Constitution like ours. 
There is no danger that Congress will abuse this 
power, because "the wisdom and the discretion of 
Congress, their identity with the people, and the in- 
fluence which their constituents possess at election, 
are, in this, as in many other instances, as that, for 
example, of declaring war, the sole restraints on 
which they [the people] have relied, to secure them 
from its abuse. They are restraints on which the 
people must often rely solely, in all representative 
governments." The upshot of the whole dispute is, 
declares Marshall, that Congress has power over 
navigation "within the limits of every state • . so 
far as that navigation may be, in any manner, con- 
jiected " with foreign or interstate trade.* 

Marshall tries to answer the assertion that the 
power to regulate commerce is concurrent in Con- 

^ 9 Wheaton, 195-06. > lb. 196-07. 



COMMERCE MADE FREE 485 

• 

gress and the State Legislatures; but, in doing so, he 
is diffuse, prolix, and indirect. There is, he insists, 
no analogy between the taxing power of Congress 
and its power to regulate commerce; the former 
"does not interfere with the power of the staties to 
tax for the support of their own governments." In 
levying such taxes, the States "are not doing what -* 
Congress is empowered to do/' But when a State 
regulates foreign or interstate conmierce, "it is exer- 
cising the very power . . and doing the very thing 
which Congress is authorized to do." However, says 
Marshall evasively, in the case before the court the 
question whether Congress has exclusive power over 
commerce, or whether the States can exercise it im- 
til Congress acts, may be dismissed, since Congress 
has legislated on the subject. So the only practical 
question is: "Can a state regulate commerce with 
foreign nations and among the states while Con- 
gress is regulating it?" ^ 

The argument is not sound that, since the States 
are expressly forbidden to levy duties on tonnage, 
e3q>orts, and imports which they might otherwise 
have levied, they may exercise other conunercial 
regulations, not in like manner expressly prohibited. 
For the taxation of exports, imports, and tonnage is 
a part of the general taxing power and is not con- 
nected with the power to regulate commerce. It is 
true that duties on tonnage often are laid "with a 
view to the regulation of conmierce; but they may be 
also imposed with a view to revenue," and, there- 
fore, the States are prohibited from laying such taxes. 

^ 9 Wheaton, l91Ht00. 



436 JOHN MARSHALL 

There is a vast difference between taxation for the 
regulation of commerce and taxation for raising 
revenue. " Those illustrious statesmen and patriots'* 
who laimched the Revolution and framed the Con- 
stitution understood and acted upon this distinc- 
tion: "The right to regulate conunerce, even by the 
imposition of duties, was not controverted; but the 
right to impose a duty for the purpose of revenue, 
produced a war as important, perhaps, in its conse- 
quences to the hmnan race, as any the world has 
ever witnessed." ^ 

In the same way, State inspection laws, while in- 
fluencing conmierce, do not flow from a power to 
regulate conunerce. The piupose of inspection laws 
is "to improve the quality of the articles produced 
by the labor of the coimtry. . . They act upon the 
subject before it becomes an article'* of foreign or 
interstate conunerce. Such laws "form a portion 
of that immense mass of legislation which embraces 
everything within the territory of a state," and 
"which can be most advantageously exercised by 
the states themselves." Of this description are "in- 
spection laws, quarantine laws, health laws . . as 
well as laws for regulating the internal commerce of 
a state, and those which respect tiunpike-roads, 
ferries, etc." * 

Legislation upon all these subjects is a matter c^ 
State concern — Congress can act upon them only 
"for national purposes . . where the power is ex- 
pressly given for a special purpose, or is clearly in- 
cidental to some power which is expressly given*** 

1 9 Wheaton, 20«-08. * lb. «0S. 



COMMERCE MADE FREE 4S7 

Obviously, however, the National Government "in 
the exercise of its express powers, that, for example, 
of regulating [foreign and interstate] commerce • • 
may use means that may also be employed by a 
state, • • that, for example, of regulating conmierce 
within the state/' The National coasting laws, 
though operating upon ports within the same State, 
imply "no claim of a direct power to regulate the 
purely internal conmierce of a state, or to act di- 
rectly on its system of police." State laws on these 
subjects, although of the "same character'* as those 
of Congress, do not flow from the same source 
whence the National laws flow, " but from some other, 
which remains with the state, and may be executed 
by the same means/' Although identical measures 
may proceed from different powers, "this does not 
prove that the powers themselves are identical/' * 

It is inevitable in a "complex system" of govern- 
ment like ours that "contests respecting power must 
arise" between State and Nation. But this "does 
not prove that one is exercising, or has a right to 
exercise, the powers of the other." * It cannot be 
inferred from National statutes requiring National 
officials to "conform to, and assist in the execution 
of the quarantine and health laws of a state . • that 
a state may rightfully regulate conmierce"; such 
laws flow from "the acknowledged power of a state, 
to provide for the health of its citizens." Neverthe- 
less, "Congress may control the state [quiarantine 
and health] laws, so far as it may be necessary to 
control them, for the regulation of conunerce." • 

^ 9 Wheaton, 209-04. > lb. 204-05. ' lb. 205-06. 



438 JOHN* MARSHALL 

Marshall analyzes, at excessive length. National 
and State laws on the importation of slaves, on 
pilots, on lighthouses,^ to show that such legislation 
does not justify the inference that "the states pos- 
sess, concurrently'* with Congress, "the power to 
regulate commerce with foreign nations and among 
the states/' 

In the regulation of "their own purely internal 
affairs,'* States may pass laws which, although in 
themselves proper, become invalid when they inter- 
fere with a National law. Is this the case with the 
New York steamboat monopoly acts? Have they 
"come into collision with an act of Congress, and 
deprived a citizen of a right to which that act en- 
titles him *'? If so, it matters not whether the State 
laws are the exercise of a concmrent power to regu- 
late commerce, or of a power to "regulate their do- 
mestic trade and police/' In either case, "the acts 
of New York must yield to the law of Congress." * 

This truth is "founded as well on the nature of the 
government as on the words of the constitution/' 
The theory that if State and Nation each rightfully 
pass conflicting laws on the same subject, "they 
affect the subject, and each other, like equal opposing 
powers," is demolished by the "supremacy" of the 
Constitution and "of the laws made in pursuance 
of it. The nullity of any act, inconsistent with the 
constitution, is produced by the declaration that the 
constitution is the supreme law." So when a State 
statute, enacted under uncontrovertible State pow- 
ers, conflicts with a law, treaty, or the Constitution 

^ 9 Wheaton, ieOO-09. * lb. 209-10. 



COMMERCE MADE FREE 439 

of the Nation, the State enactment ^'must yield 
to it." ' 

It is not the Constitution, but "" those laws whose 
authority is acknowledged by civilized man through- 
out the world'* that "confer the right of intercourse 
between state and state. . • The constitution found 
it an existing right, and gave to Congress the power 
to regulate it. In the exercise of this power. Con- 
gress has passed an act'' r^ulating the coasting 
trade. Any law "must imply a power to exercise the 
right" it confers. How absiuxi, then, the contention 
that, while the State of New York cannot prevent a 
vessel licensed imder the National coasting law, when 
proceeding from a port in New Jersey to one in New 
York, "from enjoying . . all the privileges conferred 
by the act of Congress," nevertheless, the State of 
New York "can shut her up in her own port, and 
prohibit altogether her entering the waters and ports 
of another state"!* 

A National license^to engage in the coasting trade 
gives the right to navigate between ports of diflferent 
States.' The fact that Gibbons's boats carried pas- 
sengers only did not make those vessels any the less 
engaged in the coasting trade than if they carried 
nothing but merchandise — "no dear distinction 
is perceived between the power to regulate vessels 
employed in transporting men for hire, and prop- 
erty for hire. . . A coasting vessel employed in the 
transportation of passengers, is as much a portion 
of the American marine as one employed in the 

1 9 Wheaton, 210-11. (Italics the author's.) 
* lb. «11-1«. » lb. «14. 



440 JOHN MABSHALL 

transportation of a cargo/' ^ Falling into his chaiv 
acteristic over-explanation, Marshall proves the 
obvious by many illustrations.* 

However the question as to the nature of the 
business is beside the point, since the steamboat 
monopoly laws are based solely on the method of 
propelling boats — "whether they are moved by 
steam or wind. If by the former, the waters of New 
York are closed against them, though their cargoes 
be dutiable goods, which the laws of the United 
States permit them to enter and deliver in New 
York. If by the latter, those waters are free to them, 
though they should carry passengers only/' What 
is the injury which Ogden complains that Gibbons 
has done him? Not that Gibbons's boats carry pas- 
sengers, but only that those vessels "are moved by 
steam.'* 

"The writ of injunction and decree" of the State 
court "restrain these [Gibbons's] licensed vessels, 
not from carrying passengers, but from being moved 
through the waters of New York by steam, for any 
purpose whatever." Therefore, "the real and sole 
question seems to be, whether a steam machine, in 
actual use, deprives a vessel of the privileges con- 
ferred by a [National] license." The answer is easy 
— indeed, there is hardly any question to answer: 
"The laws of Congress, for the regulation of com- 
merce, do not look to the principle by which vesseb 
are moved." * 

Steamboats may be admitted to the coasting trade 
" in common with vessels using sails. They are . . 

1 9 Wheaton, 215-16. « lb. £16-18. • lb. 218-dO. 



COMMERCE MADE FREE 441 

entitled to the same privileges, and can no more 
be restrained from navigating waters, and entering 
ports which are free to such vessels, than if they 
were wafted on their voyage by the winds, instead 
of being propelled by the agency of fire. The one 
element may be as legitimately used as the other^ 
for every conmiercial purpose authorized by the 
laws of the Union; and the act of a state inhibiting 
the use of either to any vessel having a license imder 
the act of Congress comes . . in direct collision with 
that act/* 1 

Marshall refuses to discuss the question of Ful- 
ton's patents since, regardless of that question, 
the cause must be decided by the supremacy of 
National over State laws that regulate commerce 
between the States. 

The Chief Justice apologizes, and very properly, 
for taking so ** much time . . to demonstrate proposi- 
tions which may have been thought axioms. It is 
felt that the tediousness inseparable from the en- 
deavor to prove that which is already clear, is im- 
putable to a considerable part of this opinion. But 
it was imavoidable.** The question is so great, the 
judges, from whose conclusions "we dissent,'* are so 
eminent,^ the arguments at the bar so earnest, an 
" unbroken'* statement of principles upon which the 
court's judgment rests so indispensable, that Mar- 
shall feels that nothing should be omitted, nothing 
taken for granted, nothing assumed.' 

Having thus placated Kent, Marshall turns upon 

1 9 Wheaton, 221. 

^ Marshall is here referring particularly to Chancellor Kent. 

* 9 Wheaton» 221-22. 



442 JOHN MARSHALL 

his Virginia antagonists: ^* Powerful and ingenious 
minds, taking, as postulates, that the powers ex- 
pressly granted to the government of the Union, are 
to be contracted, by construction, into the narrowest 
possible compass, and that the original powers of 
the States are retained, if any possible construction 
will retain them, may, by a course of well digested, 
but refined and metaphysical reasoning, founded on 
these premises, explain away the constitution of our 
country y and leave it a magnificent structure indeed^ 
to look aty hut totally unfit for use. 

"They may so entan^e and perplex the under- 
standing, as to obscure principles which were before 
thought quite plain, and induce doubts where, if the 
mind were to pursue its own course, none would be 
perceived. 

"In such a case, it is peculiarly necessary to 
recur to safe and f imdamental principles to sustain 
those principles, and, when sustained, to make them 
the tests of the arguments to be examined/' ^ 

So spoke John Marshall, in his seventieth year» 
when closing the last but one of those decisive opin- 
ions which vitalized the American Constitution, and 
assured for himself the grateful and reverent homage 
of the great body of the American people as long as 
the American Nation shall endure. It is pleasant to 
reflect that the occasion for this i^t^aateTeffort dt 
Marshall's genius was the extinction of a monopoly. 

Marshall, the statesman, rather than the judge, 
appears in his opinion. While avowing the most 
determined Nationalism in the body of his opinion, 

^ Wheaton* %%SL (Italici the author's.) 



COMMERCE MADE FREE 44S 

he is cautious, nevertheless, when coming to dose 
grips with the specific question of the respective 
rights of Gibbons and Ogden. He is vague on the 
question of concurrent powers of the States over 
commerce, and rests the concrete result of his 
opinion on the National coasting laws and the 
National coasting license to Gibbons. 

William Johnson, a Republican, appointed by 
Jeflferson, had, however, no such scruples. In view 
of the strong influence Marshall had, by now, ac- 
quired over Johnson, it appears to be not improb- 
able that the Chief Justice availed himself of the 
political status of the South Carolinian, as well as 
of his remarkable talents, to have Johnson state the 
real views of the master of the Supreme Court. 

At any rate, Johnson delivered a separate opinion 
so imcompromisingly Nationalist that Marshall's 
Nationalism seems hesitant in comparison. In it 
Johnson gives one of the best statements ever made, 
before or since, of the regulation of commerce as the 
moving purpose that brought about the American 
Constitution. That instrument did not originate 
liberty of trade: "The law of nations . . pronounces 
all commerce legitimate in a state of peace, until 
prohibited by positive law.'' So the power of Con- 
gress over that vital matter "must be exclusive; it 
can reside but in one potentate; and hence, the 
grant of this power carries with it the whole subject, 
leaving nothing for the state to act upon." ^ 

Commercial laws! Were the whole of them "re- 
pealed to-morrow, all commerce would be lawful." 

1 Wheaton, 227. 



c 



444 JOHN MARSHALL 

The authority of Congress to control foreign com- 
merce is precisely the same as that over interstate 
commerce. The National power over navigation is 
not "incidental to that of regulating commerce; . . 
it is as the thing itself; inseparable from it as vital 
motion is from vital existence. . . Shipbuilding, the 
carrying trade, and the propagation of seamen, are 
such vital agents of commercial prosperity, that the 
nation which could not legislate over these subjects 
would not possess power to regulate commerce.** ^ 

Johnson therefore finds it "impossible" to agree 
with Marshall that freedom of interstate commerce 
rests on any such narrow basis as National coasting 
law or license: "I do not regard it as the foundation 
of the right set up in behalf of the appellant [Gibbons]. 
K there was any one object riding over every other 
in the adoption of the constitution, it was to keep 
the commercial intercourse among the states free 
from all invidious and partial restraints. . . If the 
[National] licensing act was repealed to-morrow,** 
Gibbons*s right to the free navigation of New York 
waters "would be as strong as it is under this 
license.** ^ 

So it turned out that the first man appointed for 
the purpose of thwarting Marshall's Nationalism, 
expressed, twenty years after his appointment, 
stronger Nationalist sentiments than Marshall him- 
self was, as yet, willing to avow openly. Johnson's 
astonishing opinion in Gibbons vs. Ogden is con- 
clusive proof of the mastery the Chief Justice had 
acquired over his Republican associate, or else of 

1 Wheaton, 228-80. > lb. 231-82. 



COMMERCE MADE FREE 445 

the conquest by Nationalism of the mind of the 
South Carolina RepubUean. 

For the one and only time in his career on the 
Supreme Bench, Marshall had pronoimced a "pop- ^ 
ular" opinion. The press acclaimed him as the de- 
liverer of the Nation from thralldom to monopoly. 
His opinion, records the New York Evening Post, 
delivered amidst "the most unbroken silence'* of a 
"courtroom . . crowded with people,'* was a won- 
derful exhibition of intellect — "one of the most 
powerful efforts of the human mind that has ever 
been displayed from the bench of any court. Many 
passages indicated a profoundness and a forecast in 
relation to the destinies of our confederacy peculiar 
to the great man who acted as the organ of the court. 
The steamboat grant is at an end." ^ 

Niles published Marshall's opinion in full,^ and 
in this way it reached, directly or indirectly, every 
paper, big and Uttle, in the whole coimtry, and was 
reproduced by most of them. Many journals con- 
tained long articles or editorials upon it, most of 
them highly laudatory. The New York Evening 
Post of March 8 declared that it would "command 
the assent of every impartial mind competent to 
embrace the subject." Thus, for the moment, 
Marshall was considered the benefactor of the 
people and the defender of the Nation against the 
dragon of monopoly. His opinion in Gibbons vs. 
Ogden changed into applause that disfavor which 
his opinion in M'Culloch vs. Maryland had evoked. 

* New York Evening Poet, March 5, IBIM, as quoted in Warren, 395. 
« Nfles, XXVI, 54-62. 



V 



446 JOHN MABSHALL 

Only the Southern political leaders saw the "dan^ 
ger"; but so general was the satisfaction of the 
public that they were, for the most part, quiescent 
as to Marshall's assertion of Nationalism in this 
particular case. 

But few events in our history have had a larger 
and more substantial effect on the well-being of the 
American people than this decision, and Marshall's 
opinion in the announcement of it. New York in» 
stantly became a free port for all America. Steam- 
boat navigation of American rivers, relieved from 
the terror of possible and actual State-created 
monopolies, increased at an incredible rate; and, 
because of two decades of restraint and fear, at 
abnormal speed.^ 

New England manufacturers were given a new 
life, since the transportation of anthracite coal 
— ^the fuel recently discovered and aggravatingly 
needed — was made cheap and easy. The owners 
of factories, the promoters of steamboat traffic, the 
innumerable builders of river craft on every navi- 
gable stream in the country, the farmer who wished 
to send his products to market, the manufacturer 
who sought quid^ and inexpensive transportation 
of his wares — all acclaimed Marshall's decision be- 
cause all found in it a means to their own interests. 

The possibilities of transportation by steam rail- 
ways soon became a subject of discussion by enter- 
prising men, and Marshall's opinion gave them tre- 

^ For example, steamboat construction on the Ohio alone almost 
doubled in a single year, and quadrupled within two years. (See table 
in Meyer-MacGill: History of TranaportaUon in the United States, ete^ 
108.) 



COMMERCE MADE FREE 447 

mendous encouragement. It was a guarantee that 
they might build raiboads across State lines and be 
safe from local interference with interstate traffic. 
Could the Chief Justice have foreseen the develop- 
ment of the railway as an agency of Nationalism, he 
would have realized, in part, the permanent and 
ever-growing importance of his opinion — in part, 
but not wholly; for the telegraph, the telephone, the 
oil and gas pipe line were also to be affected for the 
general good by Marshall's statesmanship as set 
forth in his outgiving in Gibbons vs. Ogden. 

It is not immoderate to say that no other judicial 
pronouncement in history was so wedded to the in- 
ventive genius of man and so mterwoven with the 
economic and social evolution of a nation and a 
people. After almost a century, Marshall's Nation- 
alist theory of commerce is more potent than ever; 
and nothing human is more certain than that it will 
gather new strength as far into the future as fore- 
cast can penetrate. 

At the time of its delivery, nobody complained of 
Marshall's opinion except the agents of the steam- 
boat monopoly, the theorists of Localism, and the 
slave autocracy. All these influences beheld, in Mar- 
shall's statesmanship, their inevitable extinction. 
All correctly imderstood that the Nationalism ex- 
I>ounded by Marshall, if truly carried out, sounded 
their doom. 

Immediately after the decision was published, a 
suit was brought in the New York Court of Equity, 
apparently for the purpose of having that tribunal 
define the extent of the Supreme Court's holding. 



<^ 



448 JOHN MARSHALL 

John R. Livingston secured a coasting license for 
the Olive Branch, and sent the boat from New York 
to Albany, touching at Jersey and unloading there 
two boxes of freight. The North River Steamboat 
Company, assignee of the Livingston-Fulton monop- 
oly, at once applied for an injimction.^ The mat- 
ter excited intense interest, and Nathan Sanford, 
who had succeeded Kent as Chancellor, took several 
weeks to "consider the question." * 

He delivered two opinions, the second almost as 
Nationalist as that of Marshall. "The law of the 
United States is supreme. . . The state law is anni- 
hilated, so far as the groimd is occupied by the law 
of the union; and the supreme law prevails, as if the 
state law had never been made. The supremacy of 
constitutional laws of the union, and the nullity of 
state laws inconsistent with such laws of the imion, 
are principles of the constitution of the United 
States. .. So far as the law of the imion acts upon 
the case, the state law is extinguished. . . Oppos- 
ing rights to the same thing, can not co-exist imder 
the constitution of our country.'* * But Chancellor 
Sanford held that, over commerce exclusively within 
the State, the Nation had no control. 

Livingston appealed to the Court of Errors, and 
in February, 1825, the case was heard. The year 
intervening since Marshall delivered his opinion 
had witnessed the rise of an irresistible tide of public 
sentiment in its favor; and this, more influential 
than all arguments of counsel even upon an "in- 

^ 1 Hopkins's Chancery ReporUf 151. 

* lb. 198. « 3 Cowen, 71^17. 



COMMERCE MADE FREE 449 

dependent judiciary/' was reflected in the opinion 
delivered by John Woodworth, one of the judges 
of the Supreme Court of that State. He quotes 
Marshall liberally, and painstakingly analyzes his 
opinion, which, says Woodworth, is confined to 
commerce among the States to the exclusion of that 
wholly within a single State. Over this latter trade 
Congress has no power, except for '^ national pur- 
poses,'' and then only where such power is "* ex- 
pressly given • . or is clearly incidental to some 
power expressly given/ '* ^ 

Chief Justice John Savage adopted the same 
reasoning as did Justice Woodworth, and examined 
Marshall's opinion with even greater particularity, 
but arrived at the same conclusion. Savage adds, 
however, ^'a few general remarks," and in these he 
almost outruns the Nationalism of Marshall. ^'The 
constitution . . should be so construed as best to 
promote the great objects for which it was made"; 
among them a principal one was *^^to form a more 
perfect union,"* etc.* The regulation of conunerce 
among the States *Vas one great and leading in- 
ducement to the adoption" of the Nation's funda- 
mental law.' "We are the citizens of two distinct, 
yet connected governments. . . The powers given to 
the general government are to be first satisfied." 

To the warning that the State Governments 
"will be swallowed up" by the National Govem- 
ment. Savage declares, "my answer is, if such 
danger exists, the states should not provoke a 
termination of their existence, by encroachments 

» 8 Cowen, 781-84. « lb. 750. » lb. 



> 



450 JOHN MARSHALL 

on their part." ^ In such ringing terms did Savage 
endorse Marshall's opinion in Gibbons vs. Ogden. 

The State Senators " concurred *' automatically in 
the opinion of Chief Justice Savage, and the decree 
of Chancellor Sanford, refusing an injimction on 
straight trips of the Olive Branch between New York 
landings, but granting one against commerce of any 
kind with other States, was affirmed. 

So the infinitely important controversy readied a 
settlement that, to this day, has not been disturbed. 
Conunerce among the States is within the exclusive 
control of the National Government, including that 
which, though apparently confined to State traffic, 
affects the business transactions of the Nation at 
large. The only supervision that may be exercised 
by a State over trade must be wholly confined to 
that State, absolutely without any connection what- 
ever with intercourse with other States. 

One year after the decision of Gibbons vs. Ogden, 
the subject of the powers and duties of the Supreme 
Court was again considered by Congress. During 
February, 1825, an extended debate was held in the 
Senate over a bill which, among other things, pro- 
vided for 1iu*ee additionid members of that tribimal.^ 
But the tone of its assailants had mellowed. The 
voice of denunciation now uttered words of defer- 
ence, even praise. Senator Johnson, while still com- 

» 8 Cowen, 758-M. 

^ This bill had been proposed by Senator Richard M. Jdinson ci 
K^tucky at the previous session (AnnaUt 18th Cong. Ist Sess, 579) 
as an amendment to a bill reported from the Judiciary Committee by 
Senator Martin Van Buren (ifr. 838). 



COMMERCE MADE FREE 451 

plaining of the evils of an "irresponsible*' Judiciary, 
softened his attack with encomium: "Our nation 
has ever been blessed with a most distinguished Su- 
preme Court, . . eminent for moral worth, intellec- 
tual vigor, extensive acquirements, and profound 
judicial experience and knowledge. . . Against the 
Federal Judiciary, I have not the least malignant 
emotion." ^ Senator John H. Eaton of Tennessee 
said that Virginia's two members of the Supreme 
Court (Marshall and Bui^ux>d Washington) were 
"men of distinction, . . whose decisions carried sat^ 
isf action and confidence/' * 

Senator Isham Talbot of Kentucky paid tribute 
to the "wise, mild, and guiding influence of this 
solemn tribunal/' ' In examining the Nationalist 
decisions of the Supreme Court he went out of his 
way to declare that he did not mean "to cast the 
slightest shade of imputation on the purity of in- 
tention or the correctness of judgment with which 
justice is impartially dispensed from this exalted 
bench." * 

This remarkable change in the language of Con- 
gressional attack upon the National Judiciary be* y 
came still more conspicuous at the next session in \ 
the debate upon practically the same bill and various 
amendments proposed to it. Promptly after Con- 
gress convened in December, 1825, Webster himself 
reported from the Judiciary Committee of the House 

1 D^baiM, 18th Cong. 2d Sess. 527-88. > Ih. 588. > 16. 609. 

< 16. 614. 

After considerable wrangling, the bill was reported favorably from 
the Judiciary Committee (i6. 680), but too late for further action at 
that session. 



452 JOHN MABSHALL 

a bill increasing to ten the membefship of the Su- 
preme Court and rearranging the circuits.^ This 
measure passed substantially as reported.^ 

When the subject was taken up in the Senate, 
Senator Martin Van Buren in an elaborate speech 
pointed out the vast powers of that tribunal, un- 
equaled and without precedent in the history 
of the world — powers which, if now "presented for 
the first time,*' would undoubtedly be denied by the 
people.' Yet, strange as it may seem, opposition has 
subsided in an astonishing manner, he said; even 
those States whose laws have been nullified, "aft» 
struggling with the giant strength of the Court, 
have submitted to their fate/* * 

Indeed, says Van Buren, there has grown up "a 
sentiment • . of idolatry for the Supreme Court . • 
which claims for its members an almost entire ex* 
emption from the faUibilities of our nature/* The 
press, especially, is influenced by this feeling of wor- 
ship. Van Buren himself concedes that the Justices 
have " talents of the highest order and spotless integ- 
rity." Marshall, in particular, deserves unbounded 
praise and admiration: "That . . uncommon man 
who now presides over the Court .. is, in all himian 
probability, the ablest Judge now sitting upon any 
judicial bench in the world.** • 

1 Debate9, iMi Cong. Ist Sess. 845. 

^ Four days after the House adopted Webster's bill (tb. 1149), he 
wrote his brother: "The judiciary bill will probably pass the Senate* 
as it left our House. There will be no difficulty in finding perfectly 
safe men for the new appointments. The contests on those oonstita« 
tional questions in the West have made men fit to be judges." (Web« 
ster to his brother, Jan. 99, IB96, Priv. Cones.: Webster, I, 401.) 

> DebaUi, 19th Cong. 1st Sess. 417-18. « lb. 419. • lb. 4M-£L 



COMMERCE MADE FEIEE 458 

The fiery John Rowan of Kentucky, now Senator 
from that State, and one of the boldest opponents 
of the National Judiciary, offered an amendment re- 
quiring that ^' seven of the ten Justices of the Su- 
preme Court shall concur in any judgement or decree, 
which denies the validity, or restrains the opera- 
tion, of the Constitution, or law of any of the 
States, or any provision or enaction in either/' ^ 
In advocating his amendment, however. Rowan, 
while still earnestly attacking the ^* encroachments'' 
of the Supreme Court, admitted the '^ unsuspected 
integrity" of the Justices upon which "suspicion 
has never scowled. . . The present incumbents are 
above all suspicion; obliquity of motive has never 
been ascribed to any of them." * Nevertheless, he 
complains of "a judicial superstition — which en- 
circles the Judges with infallibility." ' 

This seemingly miraculous alteration of public 
opinion, manifesting itself within one year from the 
violent outbursts of popular wrath against Marshall 
and the National Judiciary, was the result of the 
steady influence of the conservatives, unwearyingly 
active for a quarter of a century; of the natural reac- 
tion against extravagance of language and conduct 
shown by the radicals during that time; of the 
realization that the Supreme Court could be resisted 
only by force continuously exercised ; and, above all, 
of the fundamental soundness and essential justness 

1 Debatei, 19th Cong. Ist Sess. 42S-£4. > lb. 436. 

* 15. 442. Rowan's amendment was defeated (tb. 468). Upon dis- 
agreements between the Senate and House as to the nmnber and ar- 
rang^nent of districts and circuits, the entire measure was lost. In the 
House it was ''indefinitely postponed " by a vote of 99 to S9 {ib. 2648); 
and in the Senate the bill was finally laid on the table (it* 784). 



454 JOHN MARSHALL 

of Marshall's opinions, whidi, in spite of the local 
and transient hardship they inflicted, in the end 
appealed to the good sense and conscience of the 
average man. Undoubtedly, too, the character of 
the Chief Justice, which tl^ Nation had ccHne to 
ai^reciate, was a powerful dement in bringing about 
the alteration in the popular concept of the Supreme 
Court. 

But, notwithstanding the apparent diminution of 
animosity toward the Chief Justice and the National 
Judiciary, hatred of both continued, and within a 
few years showed itself with greater violence than 
ever. How Marshall met this recrudescence of 
Localism is the story of his closing years. 

When, in Gibbons vs. Ogdai, Marshall estab* 
lished the supremacy of Congress over commerce 
among the States, he also announced the absolute 
power of the National Legislature to control trade 
with foreign nations. It was not long before an op- 
portunity was afforded him to apply this principle, 
and to supplement his first great opinion on the 
meaning of the commerce clause, by another pro- 
nouncement of equal power and dignity. By acts of 
the Maryland Legislature importers or wholesalers 
of imported goods were required to take out licenses, 
costing fifty dollars each, before th^ could sell "by 
wholesale, bale or package, hogshead, barrel, or 
tierce/* Non-observance of this requirement sub- 
jected the offender to a fine of one hundred dollars 
and forfeiture of the amount of the tax.^ 

Under this law Alexander Brown and his partners^ 

^ 12 Wheaton, 420. 



COMMERCE MADE FREE 455 

George, John, and James Brown, were indicted in 
the City Court of Baltimore for having sold a pack- 
age of foreign dry goods without a license. Judg- 
ment against the merchants was rendered; and this 
was affirmed by the Court of Appeals. The case was 
then taken to the Supreme Court on a writ of error 
and argued for Brown & Co. by William Wirt and 
Jonathan Meredith, and for Maryland by Roger 
Brooke Taney ^ and Reverdy Johnson.^ 

On March 12, 1827, the Chief Justice delivered 
the opinion of the majority of the court. Justice 
Thompson dissenting. The only question, says 
Marshall, is whether a State can constitutionally 
require an importer to take out a license ^'before he 
shall be permitted to sell a bale or package" of im- 
ported goods.* The Constitution prohibits any 
State from laying imposts or duties on imports or 
exports, except what may be "absolutely necessaryj[ 
for executing its inspection laws.'* The Maryland 
act clearly falls within this prohibition: "A duty on 
imports • • is not merely a duty on the act of im- 
portation, but is a duty on the thing imported. . . 
There is no difference," continues Marshall, 

between a power to prohibit the sale of an article 
and a power to prohibit its introduction into the 
country. . . No goods would be imported if none 

1 Taney, leading counsel for Maryland, had just been appointed 
Attorney-General of that State, and soon afterwards was made At- 
tomey-Creneral of the United States. He succeeded Marshall as Chief 
Justice. (See tn/ra, 460.) 

* Johnson was only thirty-one years old at this time, but already 
a leader of the Baltimore bar and giving sure promise ol the distin- 
guished career he afterward achieved. 

* 12 Wheaton, 436. 






it 



456 JOHN MARSHALL 

could be sold." The power which can levy a small 
tax can impose a great one — can, in fact, prohibit 
the thing taxed: '^Questions of power do not depend 
on the degree to which it may be exercised.** ^ He 
admits that ^'there must be a point of time when tl^ 
prohibition [of States to tax imports] ceases and the 
power of the State to tax commences"; but '^this 
point of time is [not] the instant that the articles 
enter the country/' * 

Here Marshall becomes wisely cautious. The 
power of the States to tax and the ^^restriction" 
on that power, '^though quite distinguishable when 
they do not approach each other, may yet, like the 
intervening colors between white and black, ap- 
proach so nearly as to perplex the understanding, 
as colors perplex the vision in marking the distinc- 
tion between them. Yet tl^ distinction exists, and 
must be marked as cases arise. Till they do arise, it 
might be prematuj^ to state any rule as being uni- 
versal in its application. It is sufficient for the pres- 
ent, to say, generally, that, when the importer has 
so acted upon tl^ thing imported that it has beccmie 
/incorporated and mixed up with the mass of prop- 
'erty in the country, it has, perhaps, lost its distinc- 
tive character as an import, and has become subject 
to the taxing power of the State; but while remain- 
ing the property of the importer, in his warehouse, in 
the original form or padcage in which it was im- 
ported, a tax upon it is too plainly a duty on imports 
to escape the prohibition in the constitution." ' 

^ 12 Wheaton, 487-89. * lb. 441. ' lb. 441-42. 



COMMERCE MADE FREE 457 

It is not true that under the rule just stated, the 
State is precluded from regulating its internal trade 
and from protecting the health or morals of its citi- 
zens. The Constitutional inhibition against State 
taxation of imports applies only to ^Hhe form in 
which it was imported/* When the importer sells 
his goods ^^the [State] lajB^may treat them as it 
finds them." Measures may also be taken by the 
State concerning dangerous substances like gun- 
powder or "infectious or unsound articles" — such 
measures are within the "police power, which un- 
questionably remains, and ought to remain, with 
the States." But State taxation of imported articles 
in their original form is a violation of the clause of / 
the Constitution forbidding States to lay any im- 
posts or duties on imports and exports.^ 

Such taxation also violates the commerce clause. 
Marshall once more outlines the reasons for insert- 
ing that provision into the Constitution, cites his 
opinion in Gibbons vs. Ogden, and again declares 
that the power of Congress to regulate commerce 
"is co-extensive with the subject on which it acts 
and cannot be stopped at the external boundary of a 
State, but must enter its interior." Thb power, 
therefore, "must be capable of authorizing the sale 
of those articles which it introduces." In almost the 
same words already used, the Chief Justice reiter- 
ates that goods would not be imported if they could 
not be sold. " Congress has a right, not only to au- 
thorize importation, but to authorize the importer 
to sell." A tariff law "offers the privilege [of im- 

^ 12 Wheaton, 44S-44. 




458 JOHN MARSHALL 

portation] for sale at a fixed price to every person 
who chooses to become a purchaser/' By paying 
the duty the importer makes a contract with the 
National Government — "he . . purchase[s] the 
privilege to sell," 

"The conclusion, that the right to sell is con- 
nected with the law permitting importation, as an 
inseparable incident, is inevitable." To deny that 
right "would break up commerce.'* The power of a 
State "to tax its own citizens, or their properly 
within its territory," is "acknowledged" and is 
"sacred"; but it cannot be exercised "so as to ob- 
struct or defeat the power [of Congress] to regulate 
commerce." When State laws conflict with Na- 
tional statutes, "that which is not supreme must 
yield to that which is supreme" — a "great and 
universal truth • . inseparable from the natiu^ of 
things," which "the constitution has applied . . to 
the often interfering powers of the general and State 
governments, as a vital principle of perpetual opera- 
tion." 

The States, through the taxing power, "cannot 
reach and restrain tl^ Action of the national govern- 
ment . • — cannot reach the administration of jus- 
tice in the Courts of the Union, or the collection of 
the taxes of the United States, or restrain the opera- 
tion of any law which Congress may constitutionally 
pass — . . cannot interfere with any regulation of 
commerce." Otherwise a State might tax "goods in 
their transit through the State from one port to an- 
other for the purpose of re-exportation"; or tax arti- 
cles "passing through it from one State to another, 



COMMERCE MADE FREE 459 

for tlie purpose of traffic"; or tax 'Hhe transporta- 
tion of articles passing from the State itself to an- 
other State for commercial purposes/' Of what 
avail the power given Congress by the Constitution 
if the States may thus ^^ derange the measures of 
Congress to regulate conunerce"? 

Marshall is here addressing South Carolina and 
other States which, at that time, were threatening 
retaliation against the manufacturers of articles 
protected by the tariff.^ He pointedly observes that 
the decision in M'Culloch vs. Maryland is "entirely 
applicable'' to the present controversy, and adds 
that "we suppose tl^ principle laid down in this 
case to apply equally to importations from a sister 
State." * 

The principles announced by Marshall in Brown 
V8. Maryland have been upheld by nearly all courts 
that have since dealt with the subject of conunerce. 
But there has been much "distinguishing" of vari- 
ous cases from that decision; and, in this process, 
the application of his great opinion has often been 
modified, sometimes evaded. In some cases in 
which Marshall's statesmanship has thus been weak- 
ened and narrowed, local public sentiment as to 
questions that have come to be considered moral, 
has been influential. It is f ortimate for the Republic 
that considerations of this kind did not, in such 
fashion, impair the liberty of conunerce among the 
States before the American Nation was firmly es- 
tablished. When estimating our indebtedness to 
John Marshall, we must have in mind the state of 

^ See imira, 586-88. * 12 Wheaton* 448-ld. 



460 JOHN MABSHALL 

the country at the time his Constitutional exposi- 
tions were pronounced and the inevitable and ruin- 
ous effect that feebler and more restricted assertions 
of Nationalism would then have had. 

Seldom has a triumph of sound principles and of 
sound reasoning in the assertion of those principles 
been more frankly acknowledged than in the trib- 
ute which Roger Brooke Taney inferentially paid to 
John Marshall, whom he succeeded as Chief Justice* 
Twenty years after the decision of Brown vs. Mary- 
land, Taney declared: ''I at that time persuaded 
myself that I was right. . • But further and more 
mature reflection has convinced me that the rule 
laid down by the Supreme Court is a just and safe 
one, and i)erhaps the best that could have been 
adopted for preserving the right of the United 
States on the one hand, and of the States on the 
other, and preventing collision between them.'' ^ 

Chief Justice Taney's experience has been that of 
many thoughtful men who, for a season and when 
agitated by intense concern for a particular cause <xt 
policy, have felt Marshall to have been wrong in 
this, that, or the other of his opinions. Frequently, 
such men have, in the end, come to the steadfast 
conclusion that they were wrong and that Marshall 
was right. 

^ 5 Howard, 675. 



CHAPTER IX 

THE SUPREBfE CONSEBVATIVE 

If a judge becomes odious to the people, let him be removed. 

(William Branch Giles.) 

Our wisest friends look with ^oom to the future. (Joseph Stofy.) 

I have always thou^t, from my eailiest youth till now, that the greatest 
scourge an angry Heaven ever inflicted iqxm an ungrateful and a sinning peo- 
ple, was an ignorant, a corrupt, or a dependant judidaiy. (Marshall.) 

"I WAS in a very great crowd the other evening at 
M" Adams' drawing room, but I see very few per- 
sons there whom I know & fewer still in whom I take 
any interest. A person as old as I am feels that his 
home is his place of most comfort, and his old wife 
the companion in the world in whose society he is 
inost happy. 

'"I dined yesterday with Mr. Randolph. He is 
absorbed in the party politics of the day & seems as 
much engaged in them as he was twenty five years 
past. It is very different with me. I long to leave 
this busy bustling scene & to return to the tranquil- 
ity of my iamily & farm. Farewell my dearest Polly. 
That Heaven may bless you is the unceasing prayer 

of your ever affectionate 

*' J. Marshall.*" * 

This letter to his ageing and afflicted wife, written 
in his seventy-second year, reveals Marshall's state of 
mind as he enta^ the final decade of his life. While 
the last of his history-making and natioji-building 
opinions had been ddivered, the years still before 

> MarshaU to his wife, March 11^ 1826» MS. 



462 JOHN IdARSHALL 

him were to be crowded with labor as arduous and 
scenes as picturesque as any during his career on the 
Bench. It was to be a period of disappointment and 
grief, but also of that supreme reward for sound and 
enduring work which comes from recognition of 
the general and lasting benefit of that work and 
of the greatness of mind and nobility of characte]^ of 
him who performed it. 

^or twenty years the Chief Justice hsd notvpted. 
The last ballot he had cast was against the reelec- 
tion of Jefferson in 1804. From that time forward 
until 1828, he had kept away from the polls. In the 
latter year he probably vot^d- Jar John Quincy 

r Adams, or rather against Andrew Jackson^ wJbo, as 
Marshall thought, typified the recrudescence of that 
I unbridled democratic spirit which he so increasingly 
/ feared and distrusted.^ 

^ Nevertheless he watched the course of politics dosdy. For in- 
stance: inunediatdy after the House had elected John Quin<-y Adams 
to the Presidency, Marshall writes his brother a letter full of political 
gossip. He 18 surprised that Adams was chosen on the first bidlot; 
many think Kremer's letter attacking Clay caused this unexpectedly 
quick decision, since it ''was & is thought a sheer calunmy; & the re- 
sentment of Clay's friends probably determined some Of the western 
members who were hesitating. It is supposed to have had some influ- 
ence elsewhere. The vote of New York was not decided five minutes 
before the ballots were taken.** 

Marshall tells his brother about Cabinet rumors — Crawford has 
refused the Treasiuy and Clay has been offered the oflSce of Secretary 
of State. ''It is meer [sic] c<»nmon rumor** that Clay will accept 
** Mr. Adams will undoubtedly wish to strengthen himsdf in the west,*' 
and Clay is strong in that section unless Kroner's letter has weakened 
him. The Chief Justice at first thought it had, but "on reflection** 
doubts whether it will "make any difference.** (Marshall to his bro- 
ther, Feb. 14, 1825, MS.) Marshall here refers to the letter of George 
Kremer, a Representative in Congress from Pennsylvania. Kremer 
wrote an anonymous letter to the Columbian Observer in which he 
asserted that Clay had agreed to ddBver votes to Adams as the price 



JOHN MARSHALL 



THE SUPREME CONSERVATIVE 463 

1 

Yet» even in so grave a crisis as Marshall believed 
the Presidential election of 1828 to be, he shrank 
from the appearance of partisanship. The Mary^ 
lander y a Baltimore Democratic paper, published an 
item quoting Marshall as having said: "I have not 
voted for twenty years; but I shall consider it a 
solemn duty I owe my country to go to the polls and 
vote at tl^ next presidential election — for shoulid 
Jackson be elected, I shall look upon the government 
as virtually dissolved." * 

This item was widely published in the Adminis- 
tration newspapers, including the Richmond Whig 
and Advertiser. To this paper Marshall wrote, de- 
nying the statement of the Bidtimore publication: 
^^ Holding the situation I do . . I have thought it 
right to abstain from any public declarations on 
the election; . • I admit having said in private that 
though I had not voted since the establishment of 
the general ticket system, and had believed that I 
never should vote during its continuance, I might 
probably depart from my resolution in this instance, 
from the strong sense I fdt of the injustice of the 



/, 



of Clay'^ appointment to the oflice of Secretary of State. After much 
bluster, Kremer admitted that he had no evidence whatever to sup* 
port his charge; yet his aocusaticm permanently besmirched Cla^^s 
reputation. (For an account of the Kroner incident see Sargent, i, 
67-74, l«S-«4.) 

Out of the Kremer letter grew a distrust of Clay which he never 
really lived down. Some time later, John Randolph sdsed an oppor- 
tunity to call the rdation between President Adams and his Secretary 
of State ''the coalition of Blifil and Black George — the combination, 
unheard of till then, of the Puritan with the bladdeg/* The bloodless, 
but not the less real duel, that followed, ended this quarrd, thou^ 
the unjust charges never quite died out. (Schurz : Henry Clay, i, 278' 
W.) 

^ Baltimore Marylander, BCaich itStf 1828. 



464 JOHN MARSHALL 

charge of corruption against the President & Secre- 
tary of State: I never did use the other expre^ions 
ascribed to me/* ^ This "card'' the Enquirer iepro- 
duced, together with the item from the Marjlander, 
commenting sckthingly upon the methotis of Ad- 
ams's supporters. 

Clay, deeply touched, wrote the Chief Justice of 
his appreciation and gratitude; but he is sony that 
Marshall paid any attention to the matter "'because 
it will subject you to a part of that abuse which is 
so indiscriminately applied to • • everything standing 
in the way of tl^ election of a certain individual/' ^ 
Marshall was sorely worried. He writes Story 
that the incident ""provoked" him, ""not because I 
have any objection to its being known that my pri- 

l vate judgement is in favor of the re el o ctinn jiLM^ 
Adams, but because I have great objections to being 

^ represented in the character of a furious partisan, 
"^^temperate language does not become my age or 
office, and is foreign from my disposition and habits. 
I was therefore not a little vexed at a publication 
which represented me as using language which could 
be uttered only by an angiy party man." 

He explains that the item got into the Marylander 
through a remark of one of his nephews ^who wason 
the Adams convention" at Baltimore, to the effect 
that he had heard Marshall say that, although he had 
*"not voted for upwards of tw«iiy years" he ""should 
probably vote at the ensuing election." His nephew 
wrote a denial, but it was not published. So, con- 

1 Enquirer, April 4, 1828. 

t Meaniii| Jackson. Clay to MarriiaU, April 8» 1888* MS. 



THE SUFBEME CONSERVATIVE 465 

dudes Marshall, ^*I must bear the newspaper scur- 
rility which I had hoped to escape, and which is 
generally reserved for more important personages 
than myself. It is some consolation that it does not 
wound me very deeply/* ^ 

It would seem that Marshall had early resolved to 
go to any length to deprive the enemies of the Na- 
tional Judiciary ci any pretext for attacking him or 
the Supreme Court because of any trace of partisan 
activity on his part. One of the largest tasks he had 
set for himself wasdo create public confidence in that 
tribunal and to raise it above the suspicion that party ) 
considerations swayed its decisions. He had seen how 
nearly the arrogance and political activity of the first '^ 
Federalist judges had wrecked the Supreme Court 
and the whole Judicial establishment, and had re- 
solved, therefore, to lessen popular hostility to courts, 
as far as his neutral attitude to party controversies 
could i^ccomplish that purpose. 

It thus came about that Marshall refrained even 
from exercising his right of suffrage from 1804 to 
1828 — perhaps, indeed, to the end of his life, since 
it is not certain that he voted even at the election oF 
1828. Considering the intensity of his partisan feel- 
ings, his refusal to vote, during nearly all the long 
period when he was Chief Justice, was a real sacrifice/ 
the extent of which may be measured by the fact 
that, according to his letter to Story, he did not even 
vote against Madison in 1812, notwithstanding the 
violence of his emotions aroused by the war.^ 

1 Blanhall to Story, May 1, 182S, Proceeimgi, Man. HUL 8oc. 
gd Series, xir, 880-87. 

^ See chap, i of this volume. 




> 



466 JOHN MABSHALL 

On March 4, 1829, Marshall administered the oath 

y/ of office to the newly elected President, Andrew 
Jackson. No two men ever faced one another more 
unlike in j>ereonality and character. The mild, 
gentle, benignant features of the Chief Justice con- 
trasted strongly with the stem, rigid, and aggressive 
countenance of "Old Hickory.'* The one stood for 

; /the reign of law; the other for autocratic administra- 
tion. In Jackson, whim, prejudice, hatred, and fierce 
affections were dominant; in Marshall, steady, level 
views of life and government, devotion to order 
and regularity, abhorrence of quarrel and feud, con- 
stancy and evenness in friendship or conviction, were 
the chief elements of character. Moreover, the 
Chief Justice personified the static forces of socie^; 

' the new President was the product of a fresh up- 
heaval of democracy, not unlike that which had 

, placed Jefferson in power. 

Marshall had administered the Presidential oath 
seven times before — twice each to Jefferson, Madi- 
son, and Monroe, and once to John Quincy Adams. 
And now he was reading the solemn words to the 
passionate frontier soldier from whose wild, undiscd* 
plined character he feared so much. Marshall briefly 
writes his wife about the inauguration: ^'We had 
yesterday a most busy and crowded day. People 
have flcx^ked to Washington from every quarter of 
the United States. When the oath was administered 
to the President the cK>mputation is that 12 or 15000 
people were present — a great number of them ladies. 
A great ball was given at night to celebrate the elec- 
tion. I of course did not attend it. The afflicticm of 



THE SUPREME CONSERVATIVE 467 

our son ^ would have been sufficient to restrain me 
had I even fdt a desire to go/* * In a previous letter 
to his wife he forecast the crowds and commotion: 
"The whole world it is said will be here. • • I wish 
I could leave it all and come to you. How much 
more delightful would it be to me to sit by your side 
than to witness all the pomp and parade of the 
inauguration/' • 

Much as he had come to dislike taking part in 
politics or in public affairs, except in the discharge of 
his judicial duties, Marshall was prevailed upon to be 
a delegate to the Virginia Constitutional Convention 
of 1829-30. He refused, at first, to stand for the 
place and hastened to reassure his "dearest Polly." 
"I am told," he continues in his letter describing 
Jackson's induction into office, "by several that I 
am held up as a candidate for the convention. I have 
no desire to be in the convention and do not mean 
to be a candidate. I should not trouble you with this 
did I not apprehend that the idea of my wishing to 
be in the convention might prevent some of my 
friends who are themselves desirous of being in it 
from becoming candidates. I therefore wish you to 
give this information to Mr. Harvie.* • • Farewell 
my dearest Polly. Your happiness is always nearest 
the heart of your J. Marshall." * 

He yielded, however, and wrote Story of his dis- 
gust at having done so: "I am almost ashamed of 

1 Thomas, whose wife died Feb. 2, 1829. (Paxton, 92.) 
< MarshaU to his wife, March 5 [1829], MS. 

* Same to same, Feb. 1, 1829, MS. 

^ Jacquelin B. Harvie, who married Marshall's daughter, Maiy. 

• MarshaU to his wife, March 5 [1829], MS. 



\. 



468 JOHN MABSHALL 

my weakness and irresolution when I tell you that 
I am a member of our convention* I was in earnest 
when I told you that I would not come into that 
body, and really believed that I should adhere to 
that determination; but I have acted like a girl ad- 
dressed by a gentleman she does not positively dis- 
like, but is unwilling to marry. She is sure to yidd 
to the advice and persuasion of her friends. . • The 
body will contain a great deal of eloquence as well 
as talent, and yet will do, I fear» much harm with 
some good. Our freehold suffrage is, I believe, 
gone past redemption. It is impossible to resist the 
influence, I had ahnost said contagion of imiversal 
example.'' ^ 

For fifty-three years Virginia had been governed 
under the constitution adopted at the b^^inning of 
the Revolution. As early as the dose of this war the 
injustice and inadequacy of the Constitution of 1776 
had become evident, and, as a member of the House 
of Dd^ates, Marshall apparently had favored the 
adoption of a new fundamental law for the Btate.* 
Almost continuously thereafter the subject had 
been brought forward, but the conservatives al- 
ways had been strong enough to defeat constitu- 
tional reform. 

On July 12, 1916, in a letter to Samud Kercheval, 
one of the ablest documents he ever produced, 
Jefferson had exposed the defects of Virginia's con- 
stitution which, he truly said, was without '^leading 
principles." It denied equality of representation; 

1 Bianhall to Story, June 11, 18129, Prcceeiing$, Man. Hi$L Soe. 
id Series, xiv, S8S-89. 
* See vol. X, 216-17, of this woA. 



THE SUPREME CONSERVATIVE 469 






the Governor was neither elected nor controlled 
by the people; the higher judges were ^Mependent 
on none but themselves." With unsparing severity 
Jefferson denounces the County Court system. 

Clearly and simply he enumerates the construc- 
tive reforms imperatively demanded, beginning 
with '"General Suffrage" and '"Equal representa- 
tion," on which, however, he says that he wishes 
to take no public share" because that question 
has become a party one." Indeed, at the very 
beginning of this brilliant and well-reasoned letter, 
Jeffersoa tells Kercheval that it is ""for your satis- 
faction only, and not to be quoted before the 
pubhc." 1 

But Kercheval handed the lett^ around freely 
and proposed to print it for general circulation. On 
hearing of this, Je£Ferson was ""alarmed" and wrote 
Kercheval harshly, repeating that the letter was not 
to be given out and demanding that the original and 
copies be recalled.' This uncharacteristic perturba- 
tion of the former President reveals in startling 
fashion the bitterness of the strife over the calling 
of the convention, and over the issues confront- 
ing that body in making a new constitution for 
Virginia. 

Of the serious problems to be solved by the Con- 
vention of 1829-80, that of suS^^Ste was the most 
important. Up to that time nobody could vote in 
Virginia except white owners of freehold estates. 
Counties, regardless of size, had equal representation 

> Jeffencm to Kercheval, July 12, 1S16, Works: Ford, xn, 8-15. 
' Same to same, Oct 8» 1816, i6. footnote to 17. 



470 JOHN MARSHALL 

in the House of Del^ates. This gave to the eastern 
and southemslayehalding sections of the State, with 
small counties having few voters, an immense pre- 
ponderance over the western and northwestern 
sections, with large counti^ having many voters. 
On the other hand, the rich slavery districtFpaid 
much heavier taxes than the poorer free counties.^ 

Marshall was distressed by every issue, to settle 
which the convention had been called. The ques- 
tion of the qualification for suffrage especially agi- 
tated him. Immediately after his election to the 
convention, he wrote Story of his troubles and mis- 
givings: ^^ We shall have a good deal of division and 
a good deal of heat, I fear, in our convention. The 
freehold principle will, I believe, be lost. It will, 
however, be supported with zeal. If that zeal should 
be successful I should not regret it. If we find that a 
decided majority is against retaining it I should pre- 
fer making a compromise by which a substantial 
property qualification may be preserved in exchange 
for it. 

" I fear the excessive [torn — probably, democratic 
spirit, coLD]cident to victory after a hard fought 
' battle continued to the last extremity may lead to 
universal suffrage or something very near it. What 
is the prop[erty] qualification for your Senate? 
How are your Senators apportioned on the State? 
And how does your system work? The question 

^ At the time of the convention the eastern part of the State paid, 
on the average, more than three times as much in taxes per acre as 
the west. The extremes were startling — the trans-Alleghany section 
(West Virginia) paid only 92 cents for every $8.43 paid by the Tide- 
water. (Proceedings and Debates qf the Vtrgmia State Ctmeenium rf 
1829-30, 214, 258, 660-61.) 



i SUPREME CONSERVATIVE 471 

whether white population alone, or white population 
compounded with taxation, shall form the basis of 
representation will excite perhaps more interest than 
even the freehold suffrage. I wish we were well 
through the difficulty/' * 

The Massachusetts Constitutional Ccmvention had 
been held nearly a decade before that of Virginia. 
The problem of suffrage had troubled the delegates 
algiQst^.iU9 much as it now perplexed Maxell. 
The reminiscent Pickering writes the Chief Justice 
of the fight made in 1820 by the Massachusetts 
conservatives against "the conceited innovators/* 
Story had been a delegate, and so had John Adams, 
fainting with extreme age, but rich with the wis- 
dom of his eighty-five years: "He made a short, but 
very good speech,** begging the convention to retain 
the State Senate as "the representative of property; 
. . the number of Senators in each district was pro- 
portioned to its direct taxes to the State revenue — 
and not to its population. Some democrats desired 
that the number of Senators should be apportioned 
not according to the taxation, but exclusively to the 
population. This, Mr. Adams and all the most in- 
telligent and considerate members opposed/* * 

IHtra-conservative as Marshall was» strongly aT"? 
he felt the great body of the pec^e incapable of j ; 
sfelf government, he was deqply concerned for the \ 
well-being of what he called " the m ass ofti he j)eople.** ^ 
The best that can be done for them, he says in a 

^ Marshall to Stoiy, July 8, 18!^, Pneeedmffs, Ma$$. HisL See. 
ftd Series, xiv, 840-41. 

> PkJcering to MarahaU, Dec. 26, 1888, Pkdceriiig MS^ 
Soc.; see also Story, i, 886-96. 



( 

\ 



J 



472 JOHN 

governments entirely popular'* ^generfl education 
"'is more indispensable . • than in an other." The 
labor problem troubles him sorely. When popula- 
tion becomes so greaT^tEat "the surplus hands" 
must turn to other employment, a grave situation 
will arise. 

'' As the supply exceeds the demand the price of 
labour will cheiq>en until it affords a bare subsist- 
ence to the laboiuer. The superadded demands of 
a family can scarcdy be satisfied and a slight in* 
dispositiout one which suspends labour and com- 
pensation for a few days produces famine and pau- 
perism. How is this to be prevented?'' Education 
may be relied on ^'in the present state ci our popu- 
lation, and for a long time to come. • . But as our 
country fills up how shall we esc^)e the evils whidi 
have foUosmd-^ .dense population?" ^ 

The Chief Justice went to the Virginia Conv^ition 
a firm supporter of the strongest possible propoty 
qualification for suffrage. On the question ctf slaveiy, 
which arose in various forms, he Had not made his 
position dear. The slavery question, as a National 
matter, perplexed and disturbed Marshall* There 
was nothing in him of £he humanitarian reformer, 
but there was eversrthing of the statesman. He 
never had but one, and that a splencSd, vision. 

The American Nation was his dream; and to the 
realization of it he c(msecrated his life. A full gra- 
eration after Marshall wrote his last despairing 

> Bflanhall to Meroer, April 7, 18f7, Ghamberkin MS& Boston 
Pub. lib. 



THE SUPREME CONSERVATIVE 478 

word on slavery, Abraham Lincoln expressed the 
conviction which the great Chief Justice had enter- 
tained: *^I would^ jnazeL the Union. I would save 
it the shortesr way under the Constitution. . • H I 
could save the Union without freeing any slave^ I 
would do it; and if I could save it by freeing some 
and leaving others alone, I would also do that. What 
I do about slavery and the colored race, I do be* 
cause I believe it helps to save the Union.'' ^ 

Pickering, the incessant, in one of his many and 
vduminous letters to Marshall which the ancient 
New Englander continued to write as long as he 
lived, had bemoaned the existence of slavery — one 
of the rare exhibitions of Liberalism displayed by 
that adamantine Federalist conservative. Marshall 
answered: ^^I concur with you in thinking that 
nothing portends more calamity & mischief to the 
Southern States than their slave population. Yet 
they seem to cherish the evil and to view with 
immovable prejudice & dislike every thing which 
may tend to diminish it. I do not wonder that they 
should resist any attempt, should one be made, to 
interfere with the rights of property, but th^ have 
a feverish jealoui^ of measures which may do good 
without the hazard of harm that is, I think, very 
unwise.*' * __ 

Marshall heartily approved the plan of the Amer- 1 
ican Colonization Society to send free negroes back \ 
to Africa. The Virginia brandi of that organization 

1 Linooln to Gradey, Aug. 22, ISeS, CampUU Worhi cf Abrakcam 
Lbieoln: Nicolay And Hay, n, 227-88. 

> ManhaU to Pickering, March 20, 1826, Prooeddingi, Mats. H%$L 
8oc. 2d Series, xnr, 821. 



474 JOHN MABSHALL 

was formed in 1829, the year of the State Constitu- 
tional Convention, and Marshall became a member. 
Two years later he became President of the Virginia 
brandi, with James Madison, John l^^Ic^Tltibid P. 
Upshur, and other prominent Virginians as Vice- 
Presidents.^ In 1881, Marshall was elected one of 
twenty-four Vice-Presidents of the National society^ 
among whom were Webster, Clay, Crawford, and 
Lafayette.* 

The Reverend R. R. Gurley, Secretary of this 
organization, wrote to the more eminent members 
asking for their views. Among those who replied 
were Lafayette, Madison, and Marshall. The Chief 
Justice says that he feels a ^Meep interest in the . . 
society,*' but refuses to "prepare any thing for 
pubUcation.*' The cause of this refusal is "the 
present state of [his] family '* ' and a determination 
"long since formed • • against appearing in print 
on any occasion.*' Neverthdess, he writes Gurley 
a letter nearly seven hundred words in length. 

Marshall thinks it "extremely desirable'* that the 
States shall pass "permanent laws" affording finan- 
cial aid to the colonization project. It will be "also 
desirable" if this legislation can be secured "to 
incline the people of color to migrate." He had 
thought for a long time that it was just possible 
that more negroes might like to go to Liberia than 

^ Fifteenth Annual RspcH, Proceedings^ American CoUmiaatkm So- 
cietif. The aboUtionists, later* mercSessly attacked the GJookatioii 
Society. (See Wflson: Rise qf the Slaee Power^ u 90S el eeq,) 

' Fourteenth Annual Report, Proceedinge, American CUonimHem 
Society. 
_ * ffis wife's ilioess. She died soon afterwards. See iirfra, dM-M. 



THE SUPREME CONSERVATIVE 476 

"can be provided for with the funds [of] the Soci- 
ety"; therefore he had "suggested, some years 
past," to the managers, "to allow a small additional 
bounty in lands to those who would pay their pas- 
sage in whole or in part." 

To Marshall it appears to be of "great importance 
to retain the countenance and protection of the Gen- , 
eral Government. Some of our cniizers stationed 
on the coast of Africa would, at the same time, 
interrupt the slave trade — a horrid traffic detested 
by all good men — and would protect the vessels 
and commerce of the Colony from pirates who infest 
those seas. The power of the government to afford 
this aid b not, I believe, contested." He thinks the 
plan of Rufus King to devote part of the proceeds 
from the sale of public lands to a fund for the colo- 
nization scheme, "the most effective that can be de- 
vised." Marshall makes a brief but dreaiy ai^ument 
for this method of raising funds for the exportation 
of the freed blacks. 

He thus closes this eminently pracUcal letter: 
"The ronoval of our colored population is, I think, 
a common object, by no means confined to the slave 
States, although they are more immediately in- 
terested in it. The whole Union would be strength- 
ened by it, and relieved from a danger, whose extent 
can scarcely be estimated." Furthermore, says the 
Chief Justice, '*it 
tion in a politica 
ample fund [from 
that our lands are 
States are to sera 



1 



476 JOHN MABSHALL 

the seeds of discord among us instead of being what 
they might be — a source of national wealth/' * 

Marshall delivered two opinions in which the 
question of slavery was involved, but they throw 
little light on his sentiments. In the case of the 
Antelope he held that the slave trade was not pro- 
hibited by international law as it then existed; but 
since the court, including Story and Thompson, 
both bitter antagonists of slavery, was unanimous, 
the views of Marshall cannot be differentiated from 
those of his associates. Spain and Portugal claimed 
certain negroes forcibly taken from Spanish and 
Portuguese slavers by an American slaver off the 
coast of Africa. After picturesque vicissitudes the 
vessel containing the blades was captured by an 
American revenue cutter and taken to Savannah 
for adjudication. 

In due course the case reached the Supreme Court 
and was elaborately argued. The Government in- 
sisted that the captured negroes should be given 
their liberty, since they had been brought into the 
country in violation of the statutes against the im- 
portation of slaves. Spain and Portugal demanded 

1 Marahall to Gurley, Dec. 14, ISSl, FiftmnAAimiud lUport, Pro- 
eeedinifs, Amenean CJclonvuUon Soeidy, pp. Ti-viii. 

In a letter even leas emotional than Marshall's, Madison favored 
the same plan. {lb. pp. ▼» vi.) Lafayette, with his imfailing floridity, 
says that he is ''proud • . of die honor of being one of the Vice Pkeri- 
dents of the Sockty/* and that ''the progressing state of our Liberia 
estaUishment is . . a source of enjoyment, and the most lively in- 
terest'* to him. (76. p. v.) 

At the time of bis death, Manhall was nresident of the Virginia 
branch of the Socfety, and his ancient enemy, Jdm l^rler, who sue- 
ceeded him in that office, pud a remarkable tribute to the goodness and 
greatness of the mw he had so loqgoiHPOsed. (I^ler: f]^, i, 567-68.) 



THE SUPREME CONSERVATIVE 477 

them as slaves '^acquired as property • . in the r^- 
ular course of legitimate commerce/' ^ It was not 
surprising that opinion on the slave trade was ^^un- 
settled/' said Marshall in delivering the opinion ci 
the court. 

All ^Xhristian and civilized nations • • have been 
engaged in it. • . Long usage» and general acquies- 
cence'' have sanctioned it.' America had been the 
first to ^^ check" the monstrous traffic. But, what- 
ever its feelings or the state of public opinion, 
the court '^must ob^ the mandate of the law." ' 
He cites four English decisions, especially a recent 
one by Sir William Scott, the effect of all being that 
the slave trade *' could not be pronounced contrary 
to the law ci nations." ^ 

Every nation, therefore, has a right to engage in 
it. Some nations may renounce that right sanctioned 
by ^'imiversal assent." But other nations cannot 
be bound by such '^ renunciation." For all nations, 
laige and small, are equal — ^'Russia and Geneva 
have equal rights." No one nation *^can rightfully 
impose a rule on another . . none can make a law 
of nations; and this traffic remains lawful to those 
whose governments have not forbidden it. . . It 
follows, that a foreign vessel engaged in the African 
slave trade, captured on the high seas in time of 
peace, by an American cruiser, and brought in for 
adjudication, would be restored." ^ 

Four months before Marshall was elected a mem- 
iMt of the Virginia Constitutional Convention, he 

1 10 Wheftton, 114. 

* Ih. 115. Mainhall ddivered this opinion Biaich 15, 18S5. 

* lb. 114. « lb. llS-19. » lb. USHtS. 



478 JOHN MARSHALL 

delivered another opinion involving the l^al statud 
of slaves. Several negroes, the property of one 
Robert Boyce, were on a steamboat, the Teche, 
which was descending the Mississippi. The vessel 
took fire and those on board, including the ni^px)es, 
escaped to the shore. Another steamboat, the Wash- 
ington, was coming up the river at the time, and 
her captain, in response to appeals from the stranded 
passengers of the burning vessel, sent a yawl to 
bring them to the Washington. The yawl was upset 
and the slaves drowned. The owner of them sued 
the owner of the Washington for their value. The 
District Court held that the doctrine of common 
carriers did not apply to human beings; and this 
was the only question before the Supreme Court, to 
which Boyce appealed. 

^^A slave • . cannot be stowed away as a common 
package,'' said Marshall in his brief opinion. ''The 
responsibility of the carrier should be measured by 
the law which is applicable to passengers, ratha* 
than by that which is applicable to the carriage of 
common goods. . . The law applicable to common 
carriers is one of great rigor. . . It has not been 
applied to living men, and . . ought not to be applied 
to them." Nevertheless, *'the anciait rule 'that 
the carrier is liable only for ordinary neglect,' still 
applies " to slaves. Therefore the Dbtrict Court was 
right in its instructions to the jury.^ 

The two letters quoted and the opinions expressjj 
the unanimous judgmait of the Supreme Court 
all the data we have as to Marshall's views on slav- 

1 2 Peters, 150-56. 



Sjflg 



THE SUPREME CONSERVATIVE 479 

ery. It appears that he r^retted the existence of \ 
slavery, feared the results of it, saw no way of getting j 
rid of it, but hoped to lessen the evil by colonizing in , 
Africa such free black people as were willing to go 
there. In short, Marshall held the opinion on slavery 
generally prevailing at that time. He was far more 
concerned that the Union should be strengthened, 
and dissension in Virginia quieted, than he was 
over the problem of human bondage, of which he i 
saw no sohition. ..J 

When he took his seat as a delegate to the Virginia 
Constitutional Convention of 1829-30, a more de- 
termined conservative than Marshall did not live. 
Apparently he did not want anything changed — 
especially if the change involved conflict — except, 
of course, the relation of the States to the Nation. 
He was against a new constitution for Virginia; 
against any extension of suffrage; against any modi- 
fication of the County Court system except to 
strengthen it; against a free white basis of repre- 
sentation; against legislative interference with 
business. His attitude was not new, nor had he ^ 

ever concealed his views. ^ii 

His opinions of legislation and corporate property^ 
for instance, are revealed in a letter written twenty 
years before the Convention of 1829-30. In with- 
drawing from some Virginia corporation because the 
General Assembly of the State had passed a law f or^ 
the control of it, Marshall wrote: "I consider the in- ^. 
terf erence of the legislature in the management of > 
our private affairs, whether those affairs are com- 
mitted to a company or remain under individual 



? 



480 JOHN MARSHALL 

direction, as equally dangerous and unwise. I have 
always thought so and I still think so. I may be 
compelled to subject my property to these interfer- 
ences, and when compelled I shall submit; but I will 
not voluntarily expose myself to the exercise of a 
power which I think so improperly usurped." ^ 

Two years before the convention was called, Mar- 
shall's unyielding conservation^ ^^as-difiplayed in a» 
most conspicuous manner. In Sturges jpia_£ro^mi]x^ 
shield,^ a State law had been held invalid which re- 
lieved creditors from contracts made before the pas- 
sage of that law. But, in his opinion in that case, 
Marshall used language that also applied to con- 
tracts made after the enactment of insolvency stat- 
utes; and the bench and bar generally had accepted 
his statement as the settled opinion of the Supreme 
Court. But so acute had public discontent become 
over this rigid doctrine, so strident the demand for 
bankrupt laws relieving insolvents, at least from 
contracts made after such statutes were enacted, 
that the majority of the Supreme Court yielded 
to. popular insistence and, in Ogden w. Saunders,' 
held that "'an insolvent law of a State does not 



1 Marshall to Greenhow, Oct 17, 1S09, MSS. *' Judges and 
nent Lawyers/' Mass. ICst. Soc. 

* See fwpra^ 20^1S, of this volume. 

* Vi Wheaton, %\\ et seq. John Saunders, a dtizen of Kentucky, 
sued George M. Ogden, a citizen of Louisiana, on bills of exchange 
which Ogden, then a dticen of New York, had accepted in 1806, but 
which were protested for non-payment. The defenduit pleaded a dis- 
charge granted by a New York court under the insolvent law of that 
State enacted in 1801. (lb.) On the manuscript records of the Su* 
preme Court, Saunders is spelled Scmden, AHet the case was filed, 
the death of Ogden was suggested, and his executors, Charles Bar- 
rod and Francis B. Ogden, were substituted. 



THE SUPREME CONSERVATIVE 481 

impair the obligation of future contracts between 
its citizens/* ^ 

For the first time in twenty-seven years the ma- 
jority of the court opposed Marshall on a question 
of Constitutional law. The Chief Justice dissented 
and delivered one of the most powerful opinions he 
ever wrote. The very "nature of our Union,'* he 
says, makes us "one people, as to cbmmercial ob- 
jects/* * The prohibition in the contract clause "is 
complete and total. There is no exception from it.' 
• . Insolvent laws are to operate on a future, contin- 
gent unforseen event.** * Yet the majority of the 
court hold that such legislation liters into subse- 
quent contracts " so completely as to become a . • 
part'* of them* If this is true of one law, it is true 
of "every other law which relates to the subject." 

But this would mean, contends Marshall, that a 
vital provision of the Constitution, "one on which 
the good and the wise reposed confidently for se- 
curing the prosperity and harmony of our citizens, 
would lie prostrate, and be construed into an 
inanimate, inoperative, unmeaning clause.'* The 
construction of the majority of the court would 
"convert an inhibition to pass laws impairing the 
obligation of contracts into an inhibition to pass 
retrospective laws.** * If the-* Constitution means 
this, why is it not so expressed? The mischievous 
laws which caused the insertion of the contract 
clause "embraced future contracts, as well as those 
previously form^.** « 

1 Washington, J61iDson,T1iomp6on, and Trimble each deUveredk^ 
opinions supporting this view. (12 Beaton, ^4-831, 358-869.) 
* Ib.$^ « lb. 895. « lb. 887. » lb. S5Q. • lb. 857. 



^ 



I 



4&2 JOHN MABSHALL 

The gist of Marshall's voluminous ^opinion in 
Ogden vs. Saunders is that the Constitution protects 
> 1 all contracts, past or future, from State legislation 
[which in any manner impairs their obligation. ^ Con- 
sidering that even the rigidly conservative Bushrod 
Washington, Marshall's stanch supporter, refused to 
follow his stem philosophy, in this case, the measure 
and character of Marshall's conservatism are seen 
when, in his seventy-fifth year, he helped to frame 
a new constitution for Virginia. 

Still another example of Marshall's rock-like con- 
servatism and of the persistence with which he held 
fast to his views is afforded by a second dissent from 
the majority of the court at the same session. This 
time every one of the Associate Justices was against 
him, and Story delivered their unanimous opinion. 
The Bank of the United States had sued Julius B. 
Dandridge, cashier of the Richmond branch, and his 
sureties, on his official bond. Marshall, sitting as 
Circuit Judge, had held that only the written record 
of the bank's board of directors, that they approved 
and accepted the bond, could be received to prove 
that Dandridge had been legally authorized to act 
as cashier. 

The Supreme Court reversed Marshall's judgmentt 
holding that the authorization of an agent by a 
corporation can be established by presmnptive evi- 
dence,' an opinion that was plainly sound and which 
stated the law as it has continued to be ever since. 
But despite the unanimity of his brethren, the dear 

^ Story and Duval concurred with Marshall. 
> 1£ Wheaton, 65-90. 



THE SUPREME CONSERVATIVE 488 

and convincing opinion of Story, the disapproval of 
his own views by the bench, bar, and business men 
of the whole country, lyjarshall would not yield. 
"The Ch: Jus: I fear will die hardy ^ wrote Webster, 
who was of coimsel for the bank.^ 

In a very long opinion Marshall insists that his 
decision in the Circuit Court was right, fortifying his 
argument by more than thirty citations. He begins 
by frank acknowledgment of the discontent his de- 
cision in the Circuit Court has aroused: "I shoidd 
now, as is my custom, when I have the misfortime 
to differ with this court, acquiesce silently in its opin- 
ion, did I not believe that the judgment of the cir- 
cuit court of Virginia gave general surprise to the 
profession, and was generally condemned/' Corpora- 
tions, " being destitute of human organs," can express 
themselves only by writing. They must act through 
agents; but the agency can be created and proved 
only by writing. 

Marshall points out the serious possibilities to 
those with whom corporations deal, as well as to the 
corporations themselves, of the acts of persons serv- 
ing as agents without authority of record.* Powerful 
as his reasoning is, it is based on mistaken premises 
inapplicable to modem corporate transactions; but 
his position, his method, his very style, reveal the 
stubborn conservative at bay, bravely defending 
himself and his views. 

This, then, was the John Marshall, who, in his old 
age, accepted the call of men as conservative as 

^ Webster to Biddle. Feb. 20, 1827, Writing9 and Speeches qf Web- 
tUr: (Nat. ed.) xvi, 140. 
* 12 TVheaton, 00-110. 



484 JOHN MATLSHALL 

\ himself to help frame a new oonstitxition for Virginia. 
On Monday, October 5, 1829, the convention met 
in the House of Delegates at Richmond. James Mad- 
ison, then in his seventy-ninth year, feeble and 
wizened, called the members to order and .nomi* 
nated James Monroe for President of the conven- 
tion. This nomination was seconded by Marshall. 
These three men, whose careers since before the 
Revolution and throughout our formative period, 
had been more distinguished, up to that time, than 
had that of any American then living, were the most 
conspicuous persons in that notable Assembly. 
Giles, now Governor of the State, was also a mem- 
ber; so were Randolph, Tyler, Philip P. Barbour, 
Upshur, and Tazewell. Indeed, the very ablest men 
in Virginia had been chosen to make a new con- 
stitution for the State. In the people*s anxiety to 
select the best men to do that important work, 
delegates were chosen regardless of the districts in 
which they lived.^ 

To Marshall, who naturally was appointed to the 
Judiciary Committee,* fell the task of presenting to 
the convention the first petition of non-freeholders 
for suflfrage.* No more impressive document was 
read before that body. It stated the whole dem- 
ocratic argument clearly and boldly.* The first 
report received from any committee was made by 
Marshall and also was written by him.^ It provided 

^ Grigsby: Virginia Cofwention cf 181^9-30; and see AmUer: See* 
iumaliam in Virginia, 145. Chapter v of Professor Ambler's book is 
devoted exclusively to the convention. Also see preface to Ddndea 
Va, Conv, iii; and see Dodd, in American Journal cf Sociology, xxvi, 
no. 6» 735 et seq.; and Anderson, 1^29-86. * Debates, Va, Cone. 28L 

* lb. 25. « lb. 25-dl. ^ » Statement of Marshall, {lb. 872.) 



SXJPREME CONSERVATIVE 485 

for the organization o^ the State Judiciary, but did 
not seek materially to change the system of appoint- 
ments of judges. 

Two sentences of this report are important: "No 
modification or abolition of any Court, shall be con- 
strued to deprive any Judge thereof of his oflSce'*; 
and, "Judges may be removed from office by a vote 
of the General Assembly: but two-thirds of the whole 
number of each House must concur in such vote/' ^ 
Marshall promptly moved that this report be made 
the order of the day and this was done. * 

Ranking next to the question of the basis of suf- 
frage and of representation was that of judiciary re-^ 
ierju^ To accomplish this reform was one ot tne ob- 
jects for which the convention had been called. At 
that time the Judiciary of Virginia was not merely a 
matter of courts and judges; it involved the entire 
social and political organization of that State. No 
more essentially aristocratic scheme of government 
ever existed in America. Coming down from Colo- 
nial times, it had been perpetuated by the Revolu- 
tionary Constitution of 1776. It had, in practical 
results, some good qualities and others that were 
evil, among the latter a well-nigh faultiess^pglitical 
mechanism.^ 

The heart of this system was the County Courts. 
Too much emphasis cannot be placed on this fact. 
These local tribunals consisted of justices of the 
peace who sat together as County Courts for the 
hearing and decision of the more important cases. 
They were almost always the first men of their coun- 

^ Debates, Va. C<m. 88. * See eupra, 146» 147. 



1 



486 JOHN MARSHALL 

ties, appointed by the Governor for life; vacancies 
were, in practice, filled only on the recommendalion 
of the remaining justices. While the Constitution 
of 1776 did not require the Governor to accept the 
nominations of the Coimty Courts for vacancies in 
these offices, to do so had been a custom long es- 
tablished.^ 

For this acquiescence of the Governor in the rec- 
ommendation of the County Courts, there was a very 
human reason of even weightier influence than that 
of immemorial practice. The L^islature chose the 
Governor; and the justices -oli;he peace selected, in 
most cases, the candidates for the Legislature/- 
seldom was any man elected by the people to the 
State Senate or House of Delegates who was not 
approved by the County Courts. Moreover, the 
other county offices, such as county clerks and sher- 
iffs, were appointed by the Govanor only on the 
suggestion of the justices of the peace; and these 
officials worked in absolute agreement with the local 
judicial oligarchy. In this wise members of Congress 
were, in effect, named by the County Courts, and 
the Legislature dared not and did not elect United 
States Senators of whom the justices of the peace 
disapproved. 

The members of the Court of Appeals, appointed 
by the Governor, were never offensive to these minor 
county magistrates, although the judges of this high- 
est tribimal in Virginia, always able and learned men 
holding their places for life, had great influence over 
the County Courts, and, therefore, over the Gover- 

^ See Giles's speech. Debates, Va. Cane. 604-05. 



THE SXJPREME CONSERVATIVE 487 

nor and General Assembly also. Nor was this the 
limit of the powers of the County Courts. They fixed 
the county rate of taxation and exercised all local 
l^islative and executive as well as judicial power. ^ 

In theory, a more oli£gr<^ic,jg&3tem never was de- 
vised for the government of a free state; but in prac- ' 
tice, it responded to the variations of public opinion 
with almost the precision of a thermometer. For 
example, nearly all the justices of the peace were 
Federalists during the first two years of Washing- 
ton's Administration; yet the State supported Henry 
against Assumption, and, later, went over to Jeffer- 
son as against Washington and Henry combined./ 

Rigid and self -perpetuating as was the official 
aristocracy which the Virginia judicial system had. 
created, its members generally attended to their 
duties and did well their public work.* They lived 
among the people, looked after the common good, 
composed disputes between individuals; soothed 
local animosities, prevented litigation; and admin- 
istered justice satisfactorily when, despite their pre- 
ventive efforts, men would bring suits. But the 
whole scheme was the very negation of democracy.* 

While, therefore, this judicial-social-political plan 
worked well for the most part, the idea of it was 
o ffe^Hsive t o lib ^al-gt inded men who believed in 
democracy as a principle. Moreover, the official 

^ See Ambler: Seetionalism in Virginia, 139. 

* See voL n» 62-69, of this work. 

' Serious abuses sprang up» however. In the convention, William 
Naylor of Hampshire County charged that the office of sheriff was sold 
to the highest bidder, sometimes at public auction. {DebaUBy Va, 
Cono. 486; and see Anderson, 229.) 

* See Marshall's defense of the County Court system, ir^ra, 491. 







488 JOHN MABSHALL 

oligarchy was more powerful in the heavy slave- 
holding, than in the comparatively "free labor," sec- 
tions; it had been longer established, and it better 
fitted conditions, east of the mountains. 
. So it came about that there was, at last, a demand 
< for judicial reform. Seemingly this demand was 
not radical — it was only that the self -perpetuating 
County Court system should be changed to appoint- 
' ments by the Grovemor without regard to recom- 
: mendations of the local justices; but, in reality, this 
' change would have destroyed the traditional aristo- 
; cratic organization of the political, social, and to 
jL great extent the economic, life of Virginia. 

On every issue over which the factions of this 
convention fought, Marshall was reactionary and 
employed all his skill to defeat, whenever possible, 
the plans and purposes of the radicals. In pursuing 
this course he brought to bear the power of his now 
immense reputation for wisdom and justice. Per- 
haps no other phase of his life displays more strik- 
ingly his intense conservatism. 

The conclusion. of his^early manhood — reluc- 
tantly avowed after Washington, following the Revo- 
lution, had bitterly expressed the same opinion,^ 
that the pec^le, left to themselves, are not capable 
of self-government — had now become a profound 
moral belief. It should again be stated that most of 
Marshall's views, formed as a young lawyer during 
the riotous years between the achievement of In- 
dependence and the adoption of the Constitution, 
had hardened, as life advanced, into something 

^ See vol. I, 802» of this work. 



N 



THE SUPREME CONSERVATIVE 489 

like religious convictions. It is noteworthy, too, ^ 
tliat, in general, Madison, Giles, and even Monroe, / 
now stood with Marshall. 

The most conspicuous feature of those fourteen 
weeks of tumultuous contest, as far as it reveals 
Marshall's personal standing in Virginia, was the 
trust, reverence, and affection in which he was held 
by all members, young and old, radical and conserv- 
ative, from every part of the State. Speaker after 
speaker, even in the fiercest debates, went out of ^ 
his way to pay tribute to Marshall's uprightness 
and wisdom.^ 

Marshall spoke frequently on the Judiciary; and, 
at one point in a debate on the removal of judges, 
disclosed opinions of historical importance. Al- 
though twenty-seven years had passed since the re- 
peal of the Federalist Judiciary Act of 1801,^ Mar- 
shall would not, even now, admit that repeal to be 
Constitutional. Littleton W. Tazewell, also a mem- 

^ For example, Thomas R. Jo3mes of Accomack County, who 
earnestly opposed Marshall in the Judiciary debate, said that no man 
felt "more respect" than he for Marshall's opinions which are justly 
este^ned ''not only in this Convention, but throughout the United 
States/' {D^)ates,Va.Con9.605.) Randolph spoke of "the very great 
weight" which Marshall had in the convention, in Virginia, and 
throughout the Nation. {lb. 500.) Thomas M. Bayly of Accomack 
County, while utterly disagreeing with the Chief Justice on the 
County Court system, declared that Marshall, "as a lawyer and 
Judge, is without a rival." (lb. 510.) Richard H. Henderson of Lou- 
doun County called the Chief Justice his "political father" whose 
lessons he delighted to follow, and upon whose "wisdom, . . virtue, . • 
prudence" he implicitly relied. (Henderson's statement as repeated by 
Benjamin W. Leigh, ib, 544.) Charles F. Mercer of the same county 
"expressed toward Judge Marshall a filial respect and veneration 
not surpassed by the ties which hadboimd him to a natural parent." 
(Z6. 568.) Such are examples of the expressions toward Mfti^hftH 
throughout the prolonged sessions of the convention. 

' See voL m, chap, n, of this work. 




/ 



490 JOHN MARSHALL 

ber of the Judiciary Committee, asserted that, mider 
the proposed new State Constitution, the Legisla- 
ture could remove judges from office by aboUshing 
the courts. John Scott of Fauquier County asked 
Marshall what he thought of the ousting of Fed- 
eralist judges by the Republicans in 1802. 
- The Chief Justice answered, **with great, veiy 
great repugnance,"' that throughout the debate he 
had "most carefully avoided" expressing any opin- 
ion on that subject. He would say, however, that 
**he did not conceive the Constitution to have been 
at all definitely expounded by a single act of Con- 
gress/' Especially when "there was no union of 
Departments, but the Legislative Department alone 
had acted, and acted but once," ignoring the Judi- 
cial Department, such an act, "even admitting that 
act not to have passed in times of high political and 
party excitement, could never be admitted as final 
and conclusive." ^ 

Tazewell was of "an exactly opposite opinion" — 
the Repeal Act of 1802 "was perfectly constitu- 
tional and proper." Giles also disagreed with 
Marshall. Shoidd "a public officer . • receive the 
public money any longer than he renders service to 
the public"? ^ Marshall replied with spirit. No 
serious question can be settled, he declared, by 
mere "confidence of conviction, but on the reason 
of the case." All that he asked was that the Judiciary 
Article of the proposed State Constitution should 
go forth, "uninfluenced by the opinion of any in- 
dividual: let those, whose duty it was to settle the 

1 DAaU9, Va. Com. 871-72. « /*. 87«-74. 



THE SUPREME CONSERVATIVE 491 

interpretation of the Constitution, decide on the 
Constitution itself." ^ After extended debate * and 
some wrangling, Marshall's idea on this particular - 
phase of the subject prevailed.' 

The debate over the preservation of the County 
Cjgirtjxstem, for which Marshall's report provided, 
was long and acrimonious, and a r6sum6 of it is 
impossible here. Marshall stoutly supported these 
local tribimals; their ^^ abolition will affect our whole 
internal police. . • No State in the Union, has 
hitherto enjoyed more complete internal quiet than 
Virginia. There is no part of America, where . . less 
of ill-feeling between man and man is to be found 
than in this Commonwealth, and I believe most 
firmly that this state of things is mainly to be 
ascribed to the practical operation of our County 
Courts." The county judges "consist in general of 
the best men in their respective coimties. They act 
in the spirit of peace-makers, and allay, rather than 
excite the small disputes • • which will sometimes 
arise among neighbours." ^ 

Giles now aligned himself with Marshall as a 
champion of the County Court system. In an 
earnest defense of it he went so far as to reflect on 
the good sense of Jefferson. Everybody, said Giles» 

1 DAates, Va. Com. 878. * See iftfra. 498-501. 

' Aooordingly the following provisioii was inserted into the Consti- 
tution: ''No law abolishing any court shall be construed to deprive 
a Judge thereof of his office, unless two-thirds of the members of each 
House present concur in the passing thereof; but the Legislature may 
assign other Judicial duties to the Judges of courts abolished by any 
law enacted by less than two-thirds of the members of each House 
preset.'' (Article V, Section 2, Constitution of Virginia, 1880.) 

* DOates, Va. Conv. 505. 



■^ ^. 



402 JOHN MARSHALL 

knew that that "highly respectable man . . dealt 
very much in theories." ^ 

During the remainder of the discussion on this 
subject, Marshall rose frequently, chiefly, however, 
to guide the debate.^ He insisted that the custom 
of appointing justices of the peace only on nomi- 
nation of the County Courts shoidd be written 
into the constitution. The Executive ought to 
appoint all persons recommended by "a Coimty 
Court, taken as a whole." Marshall then moved an 
amendment to that effect.' 

L._ This was a far more conservative idea than was 
I contained in the old constitution itself. "Let the 
Xounty Court who now reconmiended, have power 
also to appoint: for there it ended at last," said 
William Campbell of Bedford County. Giles was 
for Marshall's plan: "The existing County Court 
system" threw "power into the hands of the middle 
class of the conmiunity," he said; and it ought to 
be fortified rather than weakened. 

"Marshall then withdrew his astonishing amend- 
ment and proposed, instead, that the advice and 
"consent of the Senate" shoidd not be required for 
appointments of county justices, thus utterly elim- 
inating all legislative control over these important 
I appointments; and this extreme conservative prop- 
osition was actually adopted without dissent.^ Thus 
I 

1 Debates, Va. Corw. 509. 

s lb. 524, 530, 531, 533, 534. < lb. 004-05. 

* lb. 605. The provision as it finally appeared in the constitutiosi 
was that these "appointments shall be made by the Governor, on 
the recommendation of the respective County Courts." (Article V* 
Section 7» Constitution of Virginia* 1830.) 



THE SUPREME CONSERVATIVE 49S 

the very foundation of Virginia's aristocratic politi- 
cal organizatii^ was greatly strengthened. 

Concerning the retention of his o^ce by a judge / 
after the court had been aboUshe^* Marshall made 
an earnest and impressive speech. What were the 
duties of a judge? ^'He has to pass between the 
Government and the man whom that Government 
is prosecuting: between the most powerful individual 
in the conmiunity, and the poorest and most un- 
popular. It is of the last importance, that in the 
exercise of these duties, he shoidd observe the ut- 
most fairness. Need I press the necessity of this? 
Does not every man feel that his own personal se- 
curity and the security of his property depends on 
that fairness? 

^^The Judicial Department comes home in its ef- 
fects to every man's fireside: it passes on his prop- 
erty, his reputation, his life, his all. Is it not, to the 
last degree important, that he should be rendered ^ 
perfectly and completely independent, with nothing " 
to influence or controid him but God and his con- 
science? 

^* You do not allow a man to perform the duties of 
a juryman or a Judge, if he has one dollar of interest 
in the matter to be decided: and will you allow a 
Judge to give a decision when his office may depend 
upon it? when his decision may offend a powerful 
and influential man? 

^^Your salaries do not allow any of your Judges 
to lay up for his old age: the longer he remains 
in office, the more dependant he becomes upon his 
office. He wishes to retain it; if he did not wish to 



494 JOHN MARSHALL 

retain it, he would not have accepted it. And will 
you make me believe that if the manner of his de- 
cision may a£Pect the tenure of that office, the man 
himself will not be a£Pected by that consideration? • . 
The whole good which may grow out of this Con- 
vention, be it what it may, will never compensate 
for the evil of changing the tenure of the Judicial 
office/' 

Barbour had said that to presume that the L^is- 
lature would oust judges because of unpopidar de- 
cisions, was to make an unthinkable imputation. 
But "for what do you make a Constitution?" 
countered Marshall. Why provide that "no bill of 
attainder, or an ex post facto law, shall be passed? 
What a calumny is here upon the L^islature," 
Jie sarcastically exclaimed. "Do you believe, that 
the Legislature will pass a bill of attainder, or an ear 
post facto law? Do you believe, that they will pass 
a law impairing the obligation of contracts? If not, 
why provide against it? • • 

"You declare, that the Legislature shall not take 
private property for the public use, without just 
compensation. Do you believe, that the L^^ature 
will put forth their grasp upon private properly, 
without compensation? Certainly I do not. There 
is as little reason to believe they will do such an act 
as this, as there b to believe, that a L^^ature will 
offend against a Judge who has given a decision 
against some favourite opinion and favourite meas- 
ure of theirs, or against a popular individual who 
has almost led the Legislature by his talents and 
influence. 



SUFBEME CONSERVATIVE 495 

''I am persuaded; there is at least as much dan- 
ger that they will lay hold on such an individual, as 
that they will condemn a man to death for doing 
that which, when he committed it, was no crima 
The gentleman says, it is impossible the Legisla- 
ture should ever think of doing such a thing. Why 
then expunge the prohibition? . • This Convention 
can do nothing that would entail a more serious evil 
upon Virginia, than to destroy the tenure by which 
her Judges hold their offices." ^ 

An hour later» the Chief Justice again addressed 
the convention on the independence of the Judiciary. 
Tazewell had spoken much in the vein of the Re- 
publicans of 1802.^ '"The independence of all those 
who try causes between man and man, and between 
a man and his Government," answered Marshall, 
''can be maintained only by the tenure of their 
office. Is not their independence preserved under 
the present system? None can doubt it. Such an 
idea was never heard of in Virginia, as to remove a 
Judge from office." Suppose the courts at the mercy 
of the Legislature? " What would then be the con- 
dition of the courts should the Legislature prosecute 
a man, with an earnest wish to convict him? . . If 
they may be removed at pleasure, will any lawyer 
of distinction come upon your bench? 

"No, Sir. I have always thought, from my earliest 
youth till now, that the greatest scourge an angry 
Heaven ever inflicted upon an ungratefid and a 
sinning people, was an ignorant, a corrupt, or a 
dependent Judiciary. Will you draw down this 

^ DAaU9, Va. Cmw. 615-17. * See voLm, chap, n, of this work. 




496 JOHN MABSHA]iX 

curse upon Virginia? Our ance^itors thought so: we 
thought so till very lately; and I trust the vote of 
this day will shew that we think -w still." * 

Seldom in any parliamentary body has an appeal 
been so fruitfid of votes. Marshall's idea of the 
inviolability of judicial t^ure was sustained by a 
vote of 56 to S9, Madison voting with him.^ 

Lucas P. Thompson of Amherst County moved 
to strike out the provision in Marshall's Judiciary 
Article that the abolition of a court should not 
"deprive any Judge thereof of his oflBce." ^ Thus 
the direct question, so fiercely debated in Congress 
twenty-seven years earlier/ was brought before 
the convention. It was promptly decided, and 
against the views and actioa of Jefferson and the 
Republicans of 1802. By a majority of 8 out of a 
total of 96/ the convention sustained the old 
Federalist idea that judges should continue to 
hold their positions and receive their salaries, even 
though their offices were abolished. 

Before the vote was taken, however, a sharp de- 
bate occurred between MarshaU and Giles. To 
keep judges in office, although that office be de- 
stroyed, "was nothing less than to establish a priv- 
ileged corps in a free community," said Giles. 
Marshall had said "that a Judge ought to be re- 
sponsible only to God and to his own consci^ice/' 
Although "one of the first objects in view, in calling 
this Convention, was to make the Judges responsible 
— not nominally, but really responsible,'' Marshall 

^ Debates, Va. Com. 619. * 75. 6ia-19. ' Ih. 796. 

* See vol. m, cfaap. n» of this work. * DdnxUs^ Va. Cotw. 781« 



^ 



THE SUPREME CONSERVATIVE 497 

actually proposed to establish "a privileged order of 
men." Another part of Marshall's plan, said Giles 
required the concurre^t vote of both Houses of th« 
Legislature to remove a judge from the bench. 
"This was inserted, for what?** To prevent the 
Legislature from removing a judge "whenever his 
conduct had been such, that he became unpopular 
and odious to the people** — the very power the 
Legislature ought to have.^ 

In reply^^Marshall said that he would not, at that 
time, discuss the removal of judges by the Legisla- 
ture, but would confine himself " directly to the ob- 
ject before him,** as to whether the aboUtion of a 
court should not deprive the judge of his oflBce. 
Giles had fallen into a strange confusion — he had 
treated "the office of a Judge, and the Court in 
which he sat, as being • . indissolubly united.** But, 
asked Marshall, were the words "office and Court 
synonymes**? By no means. The proposed Judi- 
ciary Article makes the distinction when it declares 
that though the court be abolished, the judge still 
holds his office* "In what does the office of a Judge 
consist? . . in his constitutional capacity to receive 
Judicial power, and to perform Judicial Duties. . . 

"If the Constitution shall declare that when the 
coiui; is abolished, he shall still hold** his office, 
"there is no inconsistency in the declaration. . . 
What creates the office?** An election to it by the 
Legislature and a conmiission by the Governor. 
" When these acts have been performed, the Judges 
are in office. Now, if the Constitution shall say 

^ Debatei, Va. Conv. 720H27. 




498 JOHN MABSHALL 

that his office shall continue, and he shall perform 
Judicial duties, though his court may be abolished, 
does he, because of any modification that may be 
made in that court, cease to be a Judge? . • 

" The question constantly reciu^ — do you mean 
that the Judges shall be removable at the will of the 
Legislature? The gentleman talks of responsibility. 
Responsibility to what? to the will of the Legis- 
lature? can there be no responsibility, unless your 
Judges shall be removable at pleasure? will nothing 
short of this satisfy gentlemen? Then, indeed, there 
is an end to independence. The tenure during good 
behaviour, is a mere imposition on the public belief 
— a sound that is kept to the ear — and nothing 
else. The consequences must present themselves to 
every mind. There can be no member of this body 
who does not feel them. 

"K your Judges are to be removable at the will of 
the Legislature, all that you look for from fidelity, 
from knowledge, from capacity, is gone and gone 
forever.'' Seldom did Marshall show more feeling 
than when pressing this point; he could not "sit 
down," he said, without "noticing the morality'* of 
giving the Legislature power to remove judges from 
office. " Gentlemen talk of sinecures, and privileged 
orders — with a view, as it would seem, to cast 
odium on those who are in office. 

"You seduce a lawyer from his practice, by which 
he is earning a comfortable independence, by prom- 
ising him a certain support for life, unless he shall be 
guilty of misconduct in his office. And after thus 
seducing him, when his independence is gone, and 



r 
/ 



THE SUPBEME CONSERVATIVE 499 

the means of supporting his family relinquished, 
you will suffer him to be displaced and turned loose 
on the world with the odious brand of sinecure- 
pensioner — privileged order — put upon him, as 
a lazy drone who seeks to live upon the labour of 
others. This is the course you are asked to pursue." 

The provisions of the Judiciary Article before 
the convention secure ample responsibility. " K not, 
they can be made [to do] so. But is it not new doc- 
trine to declare, that the Legislature by merely 
changing the name of a court or the place of its meet- 
ing, may remove any Judge from his office? The 
question to be decided is, and it is one to which we 
must come, whether the Judges shall be permanent 
in their office, or shall be dependent altogether upon 
the breath of the Legislature.** ^ 

Giles answered on the instant. Li doing so, he 
began by a tribute to Marshall's "standing and per- 
sonal excellence*' which were so great "that he was 
willing to throw himself into the background, as to 
any weight to be attached to his [Giles's] own opin- 
ion." Therefore, he would "rely exclusively on the 
merits " of the controversy. Marshall had not shown 
" that it was not an anomaly to have the court out 
of being, and an office pertain[ing] to the court in 
being. • . It was an anomaly in terms." 

Giles "had, however, such high respect" for Mar- 
shall's standing, "that he always doubted his own 
opinion when put in opposition" to that of the Chief 
Justice. He had not intended, he avowed, " to throw 
reproach upon the Judges in office." Far be it from 

^ DAaiei, Va. Com. 727H29. 



500 JOHN MABSHALL 

him to reflect "in the least degree on their honour 
and integrity/* His point was_that, by Marshall's 
plan, '' responsibility was rather avoided than sought 
to be secured/* Giles was willing to risk his liberty 
thus far — " if a Judge became odious to the people, 
let him be removed from oflSce/* ^ 

The debate continued upon another amendment 
by Thompson. Viewing the contest as a sheer strug- 
gle of minds, the conservatives were superior to the 
reformers,* and steadily they gained votes.' 

Again Marshall spoke, this time crossing swords 
with Benjamin W. S. Cabell and James Madison, 
over a motion of the former that judges whose courts 
were abolished, and to whom the Legislature assigned 
no new dutie3» should not receive salaries/ "There 
were upwards of one hundred Inferior Courts in Vir- 
ginia. • • No gentleman could look at the dockets of 
these courts, and possibly think ** that the judges 
would ever have no business to transact. 

Cabell*s amendment " stated an impossible case, ** 
said Marshall, — a " case where there should be no 
controversies between man and man, and no crimes 
committed against society. It stated a case that 
could not happen — and would the convention 
encounter the real hazard of putting almost every 
Judge in the Conmionwealth in the power of the 
Legislature, for the sake of providing for an impos- 
sible case?" * But in spite of Marshall's opposition, 
Cabell*s amendment was adopted by a vote of 59 

* DsbfUeSy Vu. Com. 729^50. 

* See especially the speech of Benjamin Watkins Leigh, ib, 783-87. 
> See ih, for ayes and noes, 740> 741, 742, 744, 748. 

* Ih. 764. 



THE SUPREME CONSERVATIVE 501 

to 35-^ Two weeks later, however, the convention re- 
versed itself by two curious and contradictory votes,* 
So in the end Marshall won. 

The subject of the Judiciary did not seriously 
arise again until the vote on the adoption of the 
entire constitution was imminent. As it turn 
out, the constitution, when adopted, contained, in 
substance, the Judiciary provisions which Marshall 
had written and reported at the beginning of that 
body's deliberations.* 

The other and the commanding problem, for the 
solution of which the convention had been called, 
was made up of the associated questions of suffrage, 
taxation, and representation. Broadly speaking, th 
issue was that of white manhood suffrage and repre- 
sentation based upon the enumeration of whites, as 
against suffrage determined by property and tax- 
ation, representation to be based on an enumeration 
which included three fifths of the slave population.* 

On these complex and tangled questions the State 
and the convention were divided; so fierce were the 
contending factions, and so diverse were opinions on 
various elements of the confused problem, especially 
among those demanding reform, that at times no 
solution seemed possible. Th^.friends of reform were 
fairly well organized and coi^rated in a spirit of 

» Debates, Va. Carw. 767. « 76. 880. 

' Compare Marshall's report (ib. S3) with Article v of the constitu- 
tion (ib. 901-02; and see supra, 401» note 2.) 

^ Contrast Marshall's resolutions (Debates, Va. Cone. 8^-40), which 
expressed the conservative stand, with those of William H. Fitzhugh 
of Fairfax County {ib. 41-42), of Samuel Claytor of Campbell County 
ijSb. 42), of Charies S. Morgan of Monongalia {ib. 43-44), and of Alex* 
ander Campbell of Brooke County {jb. 45-46), which state the views 
of the radicals. 



u 




v 



502 JOHN MARSHALL 

unity uncommon to liberals. Qut, as generally hap- 
pens, the conservatives had much better discipline, 
far more harmony of opinion and conduct. The 
debate on both sides was able and brilliant.^ 

Finally the convention seemingly became dead- 
locked. Each side declared it would not yield.* Then 
came the inevitable reaction — a spirit of concil- 
iation mellowed everybody. Sheer human nature, 
wearied of strife, sought the escape that mutual ac- 
conmiodation alone afforded. The moment came for 
which. Marshall had been patiently waiting. Rising 
slowly, Hswas his wont, until his great height seemed 
to the convention to be increased, his soothing voice, 
in the very gentleness of its timbre, gave a sense of 
restf Illness and agreement so grateful to, and so de- 
sired by, even the sternest of the combatants. 

"No person in the House,*' began the Chirf Jus- 
tice, "can be more truly gratified than I am, at 
seeing the spirit that has been manifested here to- 
day; and it is my earnest wish that this spirit of 
conciliation may be acted upon in a fair, equal and 
honest manner, adapted to the situation of the dif- 
ferent parts of the Conmionwealth, which are to be 
affected.** 

The warring factions, said Marshall, were at last 

^ See, for instance* the speech of John R. Cooke of Frederick 
County for the radicals (Debates, Va, Corw, 54r-66), of Abd P. Upshur 
of Northampton for the conservatives (ib. 65-79), of Philip Doddridge 
of Brooke County for the radicals (i6. 7^-89), of Philip P. Barbour of 
Orange County for the conservatives (tb. 90-98), and especially the 
speeches of Benjamin Watkins Leigh for the conservatives {ib. 151-74» 
544-48) . Indeed, the student cannot well afford to omit any one of the 
addresses in this remarkable contest. 

* It is at this point that we see the reason tat Jefferson's alarm 
thirteen years before the convention was called. (See BVpm, 469.) 



THE SUPBEME CONSERVATIVE 603 

in substantiaLjELCCOTd. "That the Federal numbers 
[the enumeration of slaves as fixed in the National 
Constitution] and the plan of the white basis shall be 
blended together so as to allow each an equal por- 
tion of power, seems to be very generally agreed to." 
The only diflFerence now was that one faction in- 
sisted on applying this plan to both Houses of the 
Legislatiu*e, while the other faction would restrict 
the white basis to the popular branch, leaving the 
Senate to be chosen on the combined free white and 
black slave enumeration* 

This involves the whole theory of proi)erty. One 
gentleman, m particular, "seems to imagme that we 
claim nothing of republican principles, when we claim 
a representation for property/' But "republican 
principles'' do not depend on "the naked principle 
of ^umbers/' On the contrary, "the soundest prin- 
ciples of republicanism do sanction some relation 
.between representation and taxation. . . The two 
ought to be connected. . . This was the principle of 
"Jie revolution. . . This basis of Representation is .7 
feO important to Virginia" that everybody had 
thought about it before this convention was called. 

" Several diflFerent plans were contemplated. The 
basis of white population alone; the basis of free 
population alone; a basis of population alone; a basis 
compounded of taxation and white population, (or 
which is the same thing, a basis of Federal numbers :) 
. . Now, of these various propositions, the basis of 
white population, and the basis of taxation alone are 
the two extremes." But, "between the free popula- 
tion, and the white population, there is almost no 




< 



504 JOHN MARSHALL 

difference: Between the basis of total population and 
the basis of taxation, there is but little difference.** 

Frankly and without the least disguise of his opin- 
ions, Marshall admitted tiiat he was a conservative 
of conservatives: "The people of the East,'* of 
w£om he avowed himself to be one, "thought that 
they offered a fair compromise, when they proposed 
the compound basis of population and taxation^ 
or the basis of the Federal numbers. We thou^t 
that we had republican precedent for this — a prece- 
dent given us by the wisest and truest patriots that 
ever were assembled: but that is now past. 

"We are now willing to meet on a new middle 
ground.** Between the two extremes "the majority 
is too small to calculate upon. . . Weare all uncertain 
as to the issue. But all know this, that if either ex- 
treme is carried, it must leave a wound in the breast 
of the opposite party which will fester and rankle, 
and produce I know not what mischief.** The con- 
servatives were now the majority of the convention, 
yet they were again willing to make concessions. 
Avoiding both extremes, Marshall proposed, "as a 
compromise,*' that the basis of representation " shall 
be made according to an exact compound of the two 
principles, of the white basis and of the Federal num- 
bers, according to the Census of 1820»** ^ 

Further debate ensued, during which animosity 
seemed about to come to life again, when the Chief 
Justice once more exerted his moUifjdng influence. 
"Two propositions respecting the basis of Represen- 
tation have divided this Convention almost equally,'' 

^ DA(de9, Va. Com. 497-^500. 



THE SUPREME CONSERVATIVE 605 

he said. '"The question has been discussed, until 
discussion has become useless. It has been argued, 
until argument is exhausted. We have now met on 
the ground of compromise." It is no longer a matter 
of the triumph of either side. The only consideration 
now is whether the convention can agree on some 
plan to lay before the people " with a reasonable hope 
that it may be adopted. Some concession must be 
made on both sides. . . What is the real situation of 
the parties?'' Unquestionably both are sincere. "To 
attempt now to throw considerations of principle 
into either scale, is to add fuel to a flame which it is 
our purpose to extinguish. We must lose sight of 
the situation of parties and state of opinion, if we 
make this attempt." 

The convention is nearly evenly balanced. At 
this moment those favoring a white basis only have 
a trembling majority of two. This may change — 
the reversal of a single vote would leave the House 
"equally divided." 

The question must be decided "one way or the 
other"; but, if either faction prevails by a bare 
majority, the proposed constitution will go to the 
people from an almost equally divided convention. 
That means a tremendous struggle, a riven State. 
Interests in certain parts of the Commonwealth will 
surely resist "with great force" a purely white basis 
of representation, especially if no eflfective property 
qualification for suffrage is provided. This oppo- 
sition is absolutely certain "unless human natiure 
shall cease to be what it has been in all time." 

No human power can forecast the result of further 



506 JOHN MABSHALL 

contest. But one thing is certain: "To obtain a just 
compromise, concession must not only be mutual — 
it must be equal also. • • Each ought to concede to 
the other as much as he demands from that other. . . 
There can be no hope that either will yield more than 
it gets in return.'* 
r^^he proposal that white population and taxation 
"mixed** with Federal numbers in "equal propor- 
tions" shall "form the basis of Representation in 
Iboth Houses,** is equal and just. "All feel it to be 
jequal.** Yet the conservatives now go still fiuUber — 
jlhey are willing to place the House on the white basis 
and apply the mixed basis to the Senate only. Why 
Wuse this adjustment? Plainly it will work well for 
everybody: "If the Senate would protect the East, 
will it not protect the West also?** 

Marshall*s satisfaction was "inexpressible** when 
he heard from both sides the language of concilia- 
tion. "I hailed these auspicious appearances with 
as much joy, as the inhabitant of the polar regions 
hails the re-appearance of the sun after his long ab- 
sence of six tedious months. Can these appearances 
prove fallacious? Is it a meteor we have seen and 
mistaken for that splendid luminary which disi>enses 
light and gladness throughout creation? It must be 
so, if we cannot meet on equal ground. If we cannot 
meet on th^ line that divides us equally, then take 
the hand of friendship, and make an equal compro- 
mise; it is vain to hope that any compromise can be 
made.** ^ 

The basis of representation does not appear in the 

1 DOaUi, Va. CofW. Sn-^fL 




THE SUPREME CONSERVATIVE 507 

constitution, the number of Senators and Represent- 
atives being arbitrarily fixed by districts and coun- 
ties; but this plan, in reality, gave the slaveholding 
sections almost the same preponderance over the 
comparatively non-slaveholding sections as would 
have resulted from the enumeration of three fifths 
of all slaves in addition to all whites.^ 

While the freehold principle was abandoned, as 
Marshall foresaw that it would be, the principle of 
property qualification as against manhood suffrage 
was triumphant.* With a majority against them, 
the conservatives won by better management, as- 
sisted by the personal influence of the Chief Justice, 
to which, on most phases of the struggle, was added 
that of Madison and Giles. 

Nearly a century has passed since these happen^ 
ings, and Marshall's attitude now appears to have 
been that of cold reaction; but he was as honest as 
he was outspoken in his resistance to democratic re- 
forms. He wanted good government, safe govern- 
ment. He was not in the least concerned in the rule "^ 
of the people as such. Indeed, he believed that the 
more they directly controlled public affairs the worse 
the business of government would be conducted. 

He feared that sheer majorities would be unjust, / 
intolerant, tyrannical; and he was certain that they ; 
would be untrustworthy and freakishly changeable. ^ 
These convictions would surely have dictated his \ 
course in the Virginia Constitutional Convention of / 
1829-30, had no other considerations influenced him. ; 

^ Constitution of "^^rginia, 1830, Article m, Sections 1 and 2. 
* lb. Artide m. Section 14. 




1^ 



\^ 




508 JOHN MABSHALL 

But, in addition to his long settled and ever- 
petrifying conservative views, we must also take into 
account the conditions and pubUc temper existing 
in Virginia ninety years ago. Had the convention 
reached any other conclusion than that to which 
Marshall gently guided it, it is certain that the State 
would have been torn by dissension, and it is not 
improbable that there would have been bloodshed. 
All things considered, it seems UBfigl^ to affirm 
that Marshall's course was npt the wisest Jorjthat 
immediate period and for that particular State..^ 

Displaying no vision, no aspiration, no devotion 
to human rights, he merely acted the uninspiring 
but necessary part of the practical statesman deal- 
ing with aa existing and a very grave situation. K 
Jefferson could be so frightened in 1816 that he for- 
bade the public circulation of his perfectly sound 
views on the wretched Virginia Constitution of 1776,^ 
can it be wondered at that the conservative Mar- 
shall in 1830 wished to compose the antagonisms 
of the warring factions? 

The fact that the Nation was thjen facing the 
possibility of dissolution ^ must also be taken into 
account. That circumstance, indeed, influenced 
Marshall even more than did his profound conserv- 
atism. There can be Uttle doubt that, had either 
the radicals or the conservatives achieved an out- 
right victory, one part of Virginia would have sep- 
arated from the other and the growing sentiment 
for disunion would have received a powerful im- 
pulse. 

^ See auprot 469. * See next duster. 



k 



THE tOPREME CONSERVATIVE 509 

Hurrying from Richmond to Washington when 
the convention adjourned, Mai:3hall listened to the 
argument of Craig vs. Missouri; and then delivered 
one of the strongest opinions he ever wrote — the 
only one of his Constitutional expositions to be 
entirely repudiated by the Supreme Court after his 
death. The case grew out of the financial conditions 
described in the foiuiJhi chapter of this volume. 

When Missouri became a State in 1821, her people ] 
found themselves in desperate case. There was no 
money. Banks had suspended, and specie had been 
drained to the Eastern commercial centers. The 
simplest business transactions were difficult, almost 
impossible. Even taxes could not be paid. The Leg- 
islature, therefore, established., loan offices where 
citizens, by giving promissory notes, secured by 
mortgage or pledge of personal property, could pur- 
chase loan certificates issued by the State. These 
certificates were receivable for taxes and other pub- 
lic debts and for salt from the State salt mines. 
The faith and resources of Missouri were pledged 
for the redemption of the certificates which were 
negotiable and issued in denominations not exceed- 
ing ten dollars or less than fifty cents. In effect and 
in intention, the State thus created a local circulat- 
ing meditun of exchange. 

On August 1, 1822, Hiram Craig and two others ] 
gave their promissory notes for $199.99 in payment ' 
for loan certificates. On maturity of these notes the 
borrowers refused to pay, and the State sued them ; 
judgment against them was rendered in the trial 
coiui; and this judgment was affirmed by the Su- ' 



^ 



\ 



510 JOHN MARSHALL 

preme Court of Missouri. The case was taken, by 
writ of error, to the Supreme Court of the United 
States, where the sole question to be decided was 

I the constitutionality of the Missouri loan office 

' statutes. 

Marshall's associates were now Johnson, Duval, 
Story, Thompson, McLean^ and Baldwin; the last 
two recently ajgpointed by Jackson. It was becom- 
ing apparent that the coiirt was growing ^jestive 
under the ligid^practice of the austere theory of 
government and business which the Chief Justice 
had maintained for nearly a generation. This tend- 
ency was shown in this case by the stand taken 
by three of the Associate Justices. Marshall was 
in his seventy-sixth year, but never did his genius 
shine more resplendently than in his announcement 
of the opinion of the Supreme Court in Craig vs. 
Missouri.^ 

He held that the Missouri loan certificates were 
bills of credit, which the National Constitution 
prohibited any State to issue. "What is a bill of 
credit?'* It is "any instrument by which a state en- 
gages to pay money at a future dayj thus including 
a certificate given for money borrowed. . . To *emit 
bills of credit ' conveys to the mind the idea of issu- 
ing paper intended to circulate through the com- 
munity, for its ordinary purposes, as money, which 
paper is redeemable at a future day." * The Chief 
Justice goes into the history of the paper money evil 
that caused the framers of the Constitution to for- 
bid the States to "emit bills of credit." 

^ March 12, 1830. * 4 Peters, 432. 



Ik 



THE SUPREME CONSERVATIVE 511 

Such curren(y always fluctuates. "Its value is 
continually changing; and these changes, often great 
and sudden, expose individuals to immense loss, 
are the sources of ruinous speculations, and destroy 
all confidence between man and man/* To "cut up 
this mischief by the roots . • the people declared, in 
their Constitution, that no state should emit bills 
of credit. If the prohibition means anything, if the 
words are not empty soimds, it must comprehend 
the emission of any pai>er medium by a state govern- 
ment, for the purpose of common circulation.*' ^ 

Incontestably the Missouri loan certificates are 
just such bills of credit. Indeed, the State law itself 
"speaks of them in this character.** That the stat- 
ute calls them certificates instead of bills of credit 
does not change the fact. How absurd to claim that 
the Constitution "meant to prohibit names and not 
things! That a very important act, big with great 
and ruinous mischief, which is expressly forbidden . • 
may be performed by the substitution of a name.** 
' The Constitution is not to be evaded " by giving a 
new name to an old thing.** * 

It is nonsense to say that these particular biUs of j 
credit are lawful because they are not made legal / 
tender, since a separate provision applies to legal 
tender. The issue of legal tender currency, and also, 
bills of credit, is equally and separately forbidden ri 
"To sustain the one because it is not also the other; 
to say that bills of credit may be emitted if they be 
not made a tender in payment of debts; is . • to 
expunge that distinct, independent prohibition.*' * 

1 4 Peters. 4S2. * ft. 438. » lb. 434. 



512 JOHN MARSHALL 

In a well-nigh perfect historical summary, Marshall 
reviews experiments before and during the Revolu- 
tion in bills of credit that were made legal tender, 
and in others that were not — all "productive of 
the same eflfects/* all equally ruinous in results.* 
The Missouri law authorizing the loan certificates, 
for which Craig gave his promissory note, is " against 
the highest law of the land, and • . the note itself 
is utterly void." ^ 

The Chief Justice closes with a brief paragraph 
splendid in its simple dignity and power. In his ar- 
gument for Missouri, Senator Thomas H. Benton 
had used violent language of the kind frequently 
employed by the champions of State Rights: "If . . 
the character of a sovereign State shall be im- 
pugned,'' he cried, "contests about civil rights would 
be settled amid the din of arms, rather than in these 
halls of national justice.'* • 

To this outburst Marshall replies: The court has 
b^n told of "the dangers which may result from" 
offending a sovereign State. If obedience to the 
Constitution and laws of the Nation "shall be cal- 
culated to bring on those dangers •• or if it shall 
be indispensable to the preservation of the imion» 
and consequently of the independence and liberty 
of these states; these are considerations which ad- 
dress themselves to those departments which may 
with perfect propriety be influenced by them. This 
department can listen only to the mandates of law; 
and can tread only that path which is marked out 
by duty."* 

» 4 Peters, 434-86. « lb. 437. » lb. 420. « Ih. 438. 



THE SUPBEME CONSERVATIVE 618 

In this noble passage Marshall is not only re- 
bilking Benton; he is also speaking to the advocates 
of ^Tnllifi cation, then becoming clamorous and threat- 
ening; he is pointing out to Andrew Jad&son the path 
of duty.^ 

^^stices Johnson, Thompson, and McLean after- 
wards filed dissenting opinions, thus beginning the 
departure, within the Supreme Court, from the ' <^ 
stem Constitutional Nationalism of Marshall. T)iis 
breach in the court deeply troubled the Chief Jus- 
tice^kmng the remaining four years of his life. 

Johnson thought ^^that these certificates are of 
a truly amphibious character/* The Missoiu-i law 
'Moes indeed approach as near to a violation of the 
Constitution as it can well go without violating its 
prohibition, but it is in the exercise of an unques- 
tionable right, although in rather a questionable 
form/' So, on the whole, Johnson concluded that 
the Supreme Court had better hold the statute 
valid.* 

"The right of a State to borrow money cannot be 
questioned,'' said Thompson; that is all the Mis- 
souri scheme amounts to. If these loan certificates 
are bills of credit, so are " all bank notes, issued either 
by the States, or under their authority." • Justice 
McLean pointed out that Craig's case was only one 
of many of the same kind. ""The solemn act of a 
State . . cannot be set aside . . under a doubtful 
construction of the Constitution.^ . . It would be as 
gross usurpation on the part of the federal govem- 

1 See 55^58. * 4 Peters, 488-44. 

* lb. 445-50. « lb. 458. 



514 JOHN MARSHALL 

ment to interfere with State rights by an exercise 
of powers not delegated, as it would be for a State 
to interpose its authority against a law of the 
Union." ^ 

In Congress attacks upon Marshall and the Su- 
preme Coiui: now were renewed — but they grew 
continuously feebler. At the first session after the 
decision of the Missouri loan certificate case, a bill 
was introduced to repeal the provision of the Ju- 
diciary Act upon which the National powers of 
the Supreme Court so largely depended. "If the 
twenty-fifth section is repealed, the Constitution 
is practically gone/* declared Story. "Oiu' wisest 
friends look with great gloom to the future.** * 

Marshall was equally despondent, but his politi- 
cal vision was dearer. When he read the dissenting 
opinions of Johnson, Thompson, and McLean, he 
wrote Story: "It requires no prophet to predict 
that the 25*^ section [of the Judiciary Act] is to 
be repealed, or to use a more fashionable phrase 
to be nullified by the Supreme Court of the United 
States.** • He realized clearly that the great tribu- 
nal, the power and dignity of which he had done 
so much to create, would soon be brought under 
the control of those who, for some years at least, 
would reject that broad and vigorouLS National- 
ism which he had steadily and effectively asserted 

^ 4 Peters, 464. 

' Story to Ticknor, Jan. 22, 1881, Story, n, 49. Neverthdess Story 
did not despair. **It is now whispered, that the demonstrations of pub- 
lic opinion are so strong, that the majority [of the Judiciary Conmut- 
tee] will conclude not to present their report." (lb,) 

' Marshall to Story, Oct 15, 1S80, ProceedingSy Mass, Hist. Soc 
ftd Series, xiv, 342. 



THE SUPREME CONSERVATIVE 615 

during almost a third of a century. One more va- 
cwgy on the Supreme Bench and a single new ap- 
pointment by Jackson would give the court to 
the opponents of Marshall's views. Before he died, 
the Chief JuLstice was to behold two such vacan- 
cies.^ 

On January 24, 1881, William R. Davis of South 
Carolina presented the majority report of the 
Judiciary Committee favoring the repeal of that 
section of the Judiciary Act under which the Su- 
preme Court had demolished State laws and an- 
nihilated the decisions of State courts.^ James 
Buchanan presented the minority report,' A few 
minutes' preliminary discussion revealed the deep 
feeling on both sides. Philip Doddridge of Virginia 
declared that the bill was of '^as much importance 
as if it were a proposition to repeal the Union of 
these States.'* William W. Ellsworth of Connecti- 
cut avowed that it was of "overwhelming mag- 
nitude." * 

Thereupon the subject was furiously debated. 
Thomas H. Crawford of Pennsylvania considered 
Section 25 of the Judiciary Act, to be as "sacred" 
as the Constitution itself.* Henry Daniel of Ken- 
tucky asserted that the Supreme Court "stops at 
nothing to obtain power." Let the "States . . pre- 
pare for the worst, and protect themselves against 
the assaults of this gigantic tribimal." ^ 

William Fitzhugh Gordon of Virginia, recently 
elected, but already a member of the Judiciary Com- 

^ See infra, 584. ' Debates, 21st Cong. 2d Sess. 5S%. 

* lb. 535. « lb. 584. » lb. 659. * lb. 6W. 



516 JOHN MABSHALL 

mittee, stoutly defended the report of the majority: 
^* When a committee of the House had given to a sub- 
ject the cahnest and maturest investigation, and a 
motion is made to print their report, a gentleman 
gets up, and, in a tone of alarm, denounces the prop- 
osition as tantamount to a motion to repeal the 
Union." Gordon repudiated the very thought of 
dismemberment of the Republic — that ** palladium 
of our hopes, and of the liberties of mankind/' 

As to the constitutionality of Section 25 of the 
Judiciary Act — ** could it be new, especially to a 
Virginia lawyer '7 when the Virginia Judiciary, with 
Roane at its head, had solemnly proclaimed the ille- 
gality of that section. And had not Georgia ordered 
her Governor to resist the enforcement of that provi- 
sion of that ancient act of Congress? "I declare to 
Y God . . that I believe nothing would tend so much 
^' \ to compose the present agitation of the country . . 
I^as the repeal of that portion of the judiciary act." 
<Grordon was about to discuss the nefarious case of 
Cohens vs. Virginia when his emotions overcame him 
— **he did not wish • • to go into the merits of the 
question." ^ 

Thomas F. Foster of Georgia said that the Judi- 
ciary Conunittee had reported under a "galling fire 
from the press"; quoted Marshall's unfortunate 
language in the Convention of 1788; * and insisted 
that the "vast and alamiing" powers of the Supreme 
Court must be bridled.' 

1 D«6afM, 2l8t Cong. 2d Sess. 6!2(>-21. 

* lb. 781, 748; and see vd. i, 454-5o» of this wwk. 

* DtSboUi, 21st Cong. 2d Sess. 789. 



THE SUPREME CONSERVATIVE 617 

But the friends of the court overwhehned the sup- 
porters of the bill, which was rejected by a vote oi 
138 to 51.^ It was ominous, however, that the South 
stood almost solid against the court and Nationalism. 

> Debates, 2l8t Cong. 2d Sess. 542. 

This was the last fonnal attempt, but <»ie, made in Congress dur- 
ing Marshall's lifetime, to impair the efficiency of National courts. 
The final attack was made by Joseph Lecompte, a Representative 
from iCentucky, who <»i January 27, 1882, offered a resolution in- 
structing the Judiciary Committee to *' inquire into the expediency 
of amending the constitution . . so that the judges of the Supreme 
Court, and of the inferior courts, shall hold their offices for a limited 
term of years." On February 24, the House, by a vote of 141 to 27, 
refused to consider Lecompte's resolution, ignoring his plea to be al- 
lowed to explain it. (JDebaUe, 22d Cong. Ist Sess. 18^6-57.) So sum- 
mary and brusque — almost contemptuous — was the rejection of 
Lecompte's proposal, as almost to suggest that personal feeling was 
an element in the action taken by the House. 



CHAPTER X 

THE FINAL CONFLICT 

Liberty and Union, now and forever, one and inaeparable. (Daniel Webster.) 

FeQow citizens, tbe die is now cast Prepare for the crisis and meet it as be- 
comes men and freemen. (South Carolina Ordinance of Nullification.) 

The Union has been prolonged thus far by miracles. I fear they cannot con- 
tinue. (Marshall.) 

It is time to be old. 

To take in sail. (Emerson.) 

The last years of Marshall's life were clouded with 
sadness, almost despair. His health failed; his wife 
died; the Supreme Court was successfully defied; his 
greatest opinion was repudiated and denounced by a 
strong and popular President; his associates on the 
Bench were departing from some of his most cherished 
views; and the trend of public events convinced hirn 
that his labor to construct an enduring nation, to cre- 
ate institutions of orderly freedom, to introduce sta- 
bility and system into democracy, had been in vain. 

Yet, even in this unhappy period, there were hours 
of triumph for John Marshall. He heard his doctrine 
of Nationalism championed by Daniel Webster, who, 
in one of the greatest debates of history, used Mar- 
shall's arguments and almost his very words; he be- 
held the militant assertion of the same principle by 
Andrew Jackson, who, in this instance, also employed 
Marshall's reasoning and method of statement; and 
he witnessed the sudden flowering of pubUc appre- 
ciation of his character and services. 

During the spring of 1831, Marshall foimd him- 
self, for the first time in his life, suffering from acute 



L 



THE FINAL CONFLICT 519 

pain. His Richmond physician could give him no 
relief; and he became so despondent that he deter- 
mined to resign inmiediately after the ensuing Presi- 
dential election, in case Jackson should be defeated, 
an event which many then thought probable. In a 
letter about the house at which the members of the 
Supreme Court were to board during the next term, 
Marshall tells Story of his purpose: "Being . . a bird 
of passage, whose continuance with you cannot be 
long, I did not chuse to permit my convenience or my 
wishes to weigh a feather in the permanent arrange- 
ments. • . But in addition, I felt serious doubts, al- 
though I did not mention them, whether I should 
be with you at the next term. 

"What I am about to say is, of course, in perfect 
confidence which I would not breathe to any other 
person whatever. I had unaccountably calculated 
on the election of P [residen] t taking place next fall, 
and had determined to make my continuance in 
office another year de^ndent on that event. 

"You know hoi/ much importance I attach to 
the character of the person who is to succeed me, 
and calculate the influence which probabilities on 
that subject would have on my continuance in 
office. This, however, is a matter of great delicacy 
on which I cannot and do not speak. 

"My erroneous calculation of the time of the elec- 
tion was corrected as soon as the pressure of official 
duty was removed from my mind, and I had nearly 
decided on my course, but recent events produce 
such real uncertainty respecting the future as to 
create doubts whether I ought not to await the 



520 JOHN MARSHALL 

same chances in the fall of 32 which I had intended 
to await in the fall of SV ^ 

Marshall steadily became worse, and in September 
he went to Philadelphia to consult the celebrated 
physician and surgeon, Dr. Philip Syng Physick, 
who at once perceived that the Chief Justice was suf- 
fering from stone in the bladder. His affliction could 
be relieved only by the painful and delicate operation 
of lithotomy, which Dr. Physick had introduced in 
America. From his sick-room Marshall writes Story 
of his condition during the previous five months, and 
adds that he looks ** with impatience for the opera- 
tion.'* * He is still concerned about the court's 
boarding-place and again refers to his intention of 
leaving the Bench: "In the course of the siunmer . . 
I found myself unequal to the effective consideration 
of any subject, and had determined to resign at the 
dose of the year. This determination, however, I 
kept to myself, being determined to remain master 
of my own conduct.'* Story had answered Marshall's 
letter of June 26, evidently protesting against the 
thought of the Chief JuLstice giving up his office. 

Marshall replies: "On the most interesting part of 
your letter I have felt, and still feel, great difficulty. 
You understand my general sentiments on that 
subject as well as I do myself. I am most earnestly 
attached to the character of the department, and 
to the wishes and convenience of those with whom 
it has been my pride and my happiness to be asso- 
ciated for so many years. I cannot be insensible to 

^ Marshall to Story, June 26, 1S81» Procdediitffs, Mass. Hist. Soc. 2d 
Series, xiv, 944-45. 

* Same to same, Oct. 12, 1831, ib. S46-4S. 



THE FINAL CONFUCT 521 

the gloom which lours over us. I have a repug- 
nance to abandoning you under such circumstances 
which is ahnost invincible. But the solemn convic- 
tions of my judgement sustained by some pride of 
diaracter admonish me not to hazard the disgrace 
of continuing in office a mere inefficient pageant/' ^ 

Had Adams been reelected in ISSS, there can be 
no doubt that Marshall would have resigned during 
that Administration; and it is equally certain that, 
if Jackson had been defeated in 1832, the Chief Jus- 
tice would have retired immediately. The Demo- 
cratic success in the election of that year determined 
him to hold on in an effort to keep the Supreme 
Court, as long as possible, unsubmerged by the rising 
tide of radical Localism. Perhaps he also clung to a 
desperate hope that, during his lifetime, a political 
reaction would occur and a conservative President 
be chosen who could appoint his successor. 

When Marshall arrived at Philadelphia, the bar of 
that city wished to give him a dinner, and, by way 
of invitation, adopted remarkable resolutions ex- 
pressing their grateful praise and affectionate admi- 
ration. The affiiicted Chief Justice, deeply touched, 
declined in a letter of singular grace and dignity: ""It 
is impossible for me •• to do justice to the feelings 
with which I receive your very flattering address; . . 
to have performed the official duties assigned to me 
by my country in such a manner as to acquire the ap- 
probation of the Philadelphia bar, "affords me the 
highest gratification of which I am capable, and is 

^ Marshall to Story, Oct 12» 1831, Proceedings, Maee. Hist. Soe. 2d 
Series, xiv, 847. A rumor finally got about that Marshall contem* 
plated resigning. (See Niles, XL, 90.) 



522 JOHN MARSHALL 

more than an ample reward for the labor which those 
duties impose/' Marshall's greatest satisfaction, he 
says, is that he and his associates on the Supreme 
Bench **have never sought to enlarge the judicial 
power beyond its proper bounds, nor feared to carry 
it to the fullest extent that duty required/' ^ The 
members of the bar then begged the Chief Justice 
to receive them "in a body" at "the United States 
Courtroom"; and also to "permit his portrait to be 
taken" by "an eminent artist of this city." * 

With anxiety, but calmness and even good humor, 
Marshall awaited the operation. Just before he went 
to the surgeon's table. Dr. Jacob Randolph, who 
assisted Dr. Physick, found Marshall eating a hearty 
breakfast. Notwithstanding the pain he sufiFered, 
the Chief Justice laughingly explained that, since it 
might be the last meal he ever would enjoy, he had 
determined to make the most of it. He understood 
that the chances of surviving the operation were 
against him, but he was eager to take them, since he 
would rather die than continue to suffer the agony 
he had been enduring. 

While the long and excruciating operation went 
on, by which more than a thousand calculi were 
removed, Marshall was placid, "scarcely uttering 
a murmur throughout the whole procediu-e." The 

^ The resolutions of the bar had included the same idea, and Mar- 
shall emphasized it by reiterating it in his response. 

* Hazard's Pennsylvania Register^ as quoted in Dillon, m, 430-88. 
The artist referred to was either Thomas Sully, or Henry Inman, who 
had studied under Sully. During the following year, Inman painted 
the portrait and it was so excellent that it brou^t the artist his first 
general recognition. The original now hangs in the rooms of the Phila- 
delphia Law Association. A reproduction of it appears as the frontis- 
piece of this volume. 



THE FINAL CONFLICT 62S 

physicians ascribed his recovery ''in a great degree 
• • to his extraordinary self possession, and to the cahn 
and philosophical views which he took of his case/' ^ 

Marshall writes Story about his experience and 
the results of the treatment, saying that he must 
take medicine "continually to prevent new forma- 
tions/' and adding, with humorous melancholy, that 
he "must submit too to a severe and most unsoci- 
able regimen/' He cautions